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LABOR STANDARDS
Labor Code of the Philippines Annotated by Ungos
PRELIMINARY TITLE
CHAPTER 1
GENERAL PROVISIONS
Art. 1. Name of Decree. - This Decree shall be known as the “Labor
Code of the Philippines.”
COMMENT:
1. Salient Features of the Labor Code
a. It re-orients labor laws towards development and
employment goals;
b. It institutionalizes the NLRC to facilitate the speedy
settlement of labor disputes;
c. It establishes a new system of workmen’s
compensation;
d. It establishes a system for employment of overseas
workers and optimizes national benefit therefrom in the
form of dollar remittances and improved skills and
technology for our people; and
e. It institutionalizes voluntary arbitration as a mode of
settling labor disputes.
Art. 2. Date of Effectivity. – This Code shall take effect six (6)
months after its promulgation.
COMMENT:
1. Effectivity of the Labor Code
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Took effect on November 1, 1974
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Promulgated on May 1, 1974
Art. 3. Declaration of Basic Policy. – The State shall afford
protection to labor, promote full employment, ensure equal work
opportunities regardless of sex, race or creed and regulate the
relations between workers and employers. The State shall
assurethe rights of workers to self-organization, collective
bargaining, security of tenure, and just and humane conditions of
work.
COMMENT:
1. Reason for Affording Protection to Labor
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Protection to labor is intended to raise the worker to equal
footing with the employer and shield him from abuses brought
about by the necessity for survival.
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Sanchez vs. Harry Lyons – employer stands on higher footing
than the employee. First, there is greater supply than demand
for labor. Second, the need for employment by labor comes
from vital and even desperate necessity.
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Article 24 of the Civil Code – “In all contractual property or other
relations, when one of the parties is at a disadvantage on
account of his moral dependence, ignorance, indigence, mental
weakness, tender age or other handicap, the courts must be
vigilant for his protection.”
2. Extent of the Protection
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The protective mantle is available not only against oppressive
employees but also against unscrupulous union leaders.
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Heirs of Teodulo Cruz vs. CIR – The union is an agent of its
members for the purpose of securing for them fair and just
wages and good working conditions and is subject to the
obligation of giving the members as its principals all information
relevant to union and labor matters entrusted to it. In the case,
the union leadership was recreant in its duty towards the union
members for failing to disclose the full situation of their judgment
credit against respondent. Fair dealings, which is fiduciary in
nature, arises from two factors:
a. Degree of dependence of the individual employee on the
union organization
b. A corollary of the first; is the comprehensive power vested
in the union with respect to the individual.
3. Limitations
a. Protection to labor cannot be used as a pretext to defeat the
rights and prerogatives of an employer. Thus, the validity of the
dismissal of an employee found guilty of violating rules designed
for the safety of the employees themselves, should be upheld
because it protects labor and at the same time gives the
employer its due.
b. Protection to labor cannot be used as an excuse to distribute
charities at the expense of an employer. Courts cannot render
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c.
judgment on the basis of sympathies and inclinations, and
consequently, distribute charities at the expense of the
employer, because our constitutional government assures the
latter against deprivation of property except in accordance with
the statues and supplementary equitable principles.
Protection to labor is not available where both parties have
violated the law because in such a case, neither party is entitled
to protection.
Art. 4. Construction in Favor of Labor. – All doubts in the
implementation and interpretation of the provisions of this Code,
including its implementing rules and regulations shall be resolved
in favor of labor.
COMMENTS:
1. Reason for the Law
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Doubts are resolved in favor of labor in line with the principle
that those who have less in life should have more in law.
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When conflicting interest of labor and capital are weighed on the
scales of social justice, the heavier influence of the latter must
be counter-balanced by the sympathy and compassion the law
must accord the underprivileged worker.
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A contrary ruling would be a dilution and emasculation of the
protection to labor clause of the Constitution.
2. Applicability
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Article 4 applies only when there is a doubt.
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When there is no doubt, there is no room for construction.
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Where the evidence is clear that an employee is not an asset
but a liability that delays production and sets a bad example to
his co-workers, the courts should not hesitate to confirm or order
his dismissal.
3. Limitation
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The fundamental principles of due process should sternly be
applied on both the poor and the rich in order to attain proper
justice.
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The benevolent policy of the law towards te employee does not
oblige courts to be unjust and unfair to employers.
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ART. 5. Rules and Regulations. The Department of Labor and other
government agencies charged with the administration and enforcement
of this Code or any of its parts shall promulgate the necessary IRRs.
Such RRs shall become effective 15 days after announcement of their
adoption in newspapers of general circulation.
• A grant of quasi-legislative power to the DOLE and other gov’t
agencies charged with the administration and enforcement of
the Labor Code or any part thereof.
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POEA
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National Wages and Productivity Commission
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Employees’ Compensation Commission
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NLRC
• Limitation: cannot enlarge or amend the provisions of the Labor
Code
• Effectivity of LC IRRs: February 3, 1975
ART. 6. Applicability. All rights and benefits granted to workers under
this Code shall, except as may otherwise be provided herein, apply alike
to all workers, whether agricultural or non-agricultural.
• The LC applies only to employees in the private sector, whether
agricultural or non-agricultural.
• Government employees: Civil Service Law
• GOCCs created by special charter: Civil Service Law
• GOCCs organized under the Corporation Law: LC
• To be covered by the LC, there must be employer-employee
relationship.
• E-E criteria: (Viana v. Al-LAgadan)
1. Selection and engagement of employee
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Hiring
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Written contract, not necessary
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An understanding that one is to render service to the other,
and a recognition by them of the right of one to order and
control the other is sufficient
2. Payment of wages
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Wages – remuneration of earnings
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Considered wages if paid in consideration of:
a) The labor being performed
b) The results or finished work
3. Power of dismissal
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Person hired is subjected to the rules of discipline of the
employer
4. Power to control the employee’s conduct
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Most important element
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Control test: the person for whom the services are
performed reserves the rights to control not only the end to
be achieved but also the means to be used in reaching such
end.
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The control should be on both the means and the end
Insurance agents:
1. Salaried personnel who keep definite hours and work under
the control and supervision of the company – E-E
relationship exists
2. Registered representatives who work on commission basis
– no E-E relationship
The nature of the relationship between a company and its
collecting agents depends on the circumstances of each
particular relationship.
There exists an E-E relationship between a corporation and an
in-house lawyer as they are paid regular salaries
E-E relationship exists between a school and its professors. The
school has control over the work of the professors and the latter
are compensated for their services by wages or salaries rather
than by profits.
No E-E relationship exists between working students and the
colleges or universities. Such rule applies only to labor
controversies, not to civil suits for damages arising from a
tortuous act of a working student.
E-E relationship between resident physicians and training
hospitals exists, unless:
1. There is training agreement between them
2. The training program is duly accredited or approved by the
appropriate government agency
E-E relationship exists between hospitals and their consultants
only for purposes of allocating responsibility in medical
negligence cases
E-E relationship between a jeepney owner and driver under the
boundary system exists.
There is no E-E relationship between a shipping company and
the workers of stevedoring or arrastre company, unless the
same in fact acted as agent only.
An E-E relationship is created by contract and cannot be forced
upon either party simply upon order of a labor arbiter.
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Any competent and relevant evidence may be admitted as proof
of E-E relationship.
The E-E relationship is deemed suspended in the ff cases:
1. When the employee is under suspension, either as a
disciplinary penalty or as a preventive measure during the
pendency of a disciplinary proceedings against him
2. During off season, in case of regular seasonal employees
3. When fishing vessels are drydocked or undergoing repairs
4. When an employee is laid-off for a period not exceeding
6mos due to suspension of business operations
5. When an employee fulfills a civic or military duty
Termination of E-E relationship:
1. Dismissal
2. Resignation or abandonment of employment
3. Expiration of employment period
Factors that do not interrupt employment relationship:
1. Leave of absence with pay
2. Illegal dismissal
3. Strike
CHAPTER II
Emancipation of Tenants
Art. 7. Statement of objectives.Inasmuch as the old concept of land
ownership by a few has spawned valid and legitimate grievances that
gave rise to violent conflict and social tension and the redress of such
legitimate grievances being one of the fundamental objectives of the
New Society, it has become imperative to start reformation with the
emancipation of the tiller of the soil from his bondage.
Art. 8. Transfer of lands to tenant-workers.Being a vital part of the
labor force, tenant-farmers on private agricultural lands primarily
devoted to rice and corn under a system of share crop or lease tenancy
whether classified as landed estate or not shall be deemed owner of a
portion constituting a family-size farm of five (5) hectares, if not irrigated
and three (3) hectares, if irrigated.
In all cases, the land owner may retain an area of not more than
seven (7) hectares if such landowner is cultivating such area or will now
cultivate it.
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Art. 9. Determination of land value.For the purpose of determining the
cost of the land to be transferred to the tenant-farmer, the value of the
land shall be equivalent to two and one-half (2-1/2) times the average
harvest of three (3) normal crop years immediately preceding the
promulgation of Presidential Decree No. 27 on October 21, 1972.
The total cost of the land, including interest at the rate of six
percent (6%) per annum, shall be paid by the tenant in fifteen (15) years
of fifteen (15) equal annual amortizations.
In case of default, the amortization due shall be paid by the
farmers’ cooperative in which the defaulting tenant-farmer is a member,
with the cooperative having a right of recourse against him.
The government shall guarantee such amortizations with shares
of stock in government-owned and government-controlled corporations.
Art. 10. Conditions of ownership.No title to the land acquired by the
tenant-farmer under Presidential Decree No. 27 shall be actually issued
to him unless and until he has become a full-pledged member of a duly
recognized farmers’ cooperative.
Title to the land acquired pursuant to Presidential Decree No. 27
or the Land Reform Program of the Government shall not be
transferable except by hereditary succession or to the Government in
accordance with the provisions of Presidential Decree No. 27, the Code
of Agrarian Reforms and other existing laws and regulations.
Art. 11. Implementing agency.The Department of Agrarian Reform
shall promulgate the necessary rules and regulations to implement the
provisions of this Chapter.
BOOK I
PRE-EMPLOYMENT
Art. 12. Statement of objectives.It is the policy of the State:
a. To promote and maintain a state of full employment through
improved manpower training, allocation and utilization;
b. To protect every citizen desiring to work locally or overseas by
securing for him the best possible terms and conditions of
employment;
c. To facilitate a free choice of available employment by persons
seeking work in conformity with the national interest;
d. To facilitate and regulate the movement of workers in
conformity
with
the
national
interest;
e. To regulate the employment of aliens, including the
establishment of a registration and/or work permit system;
f. To strengthen the network of public employment offices and
rationalize the participation of the private sector in the
recruitment and placement of workers, locally and overseas,
to
serve
national
development
objectives;
g. To insure careful selection of Filipino workers for overseas
employment in order to protect the good name of the
Philippines abroad.
Title I
RECRUITMENT AND PLACEMENT OF WORKERS
Chapter I
GENERAL PROVISIONS
Art. 13. Definitions.
a. "Worker" means any member of the labor force, whether
employed
or
unemployed.
b. "Recruitment and placement" refers to any act of canvassing,
enlisting, contracting, transporting, utilizing, hiring or procuring
workers, and includes referrals, contract services, promising
or advertising for employment, locally or abroad, whether for
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c. "Private fee-charging employment agency" means any person
or entity engaged in recruitment and placement of workers for
a fee which is charged, directly or indirectly, from the workers
or
employers
or
both.
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Number of persons dealt with, not essential
Recruitment and
Contracting/Subcontracting
placement
The agency merely
The contractor/subcontractor
engages a job applicant for undertakes a specific job or
the purpose of placing him service for a principal with the
with another employer
use of its own employees
Needs a license or
Doesn’t
authority from the DOLE
d. "License" means a document issued by the Department of
Labor authorizing a person or entity to operate a private
employment
agency.
Art. 14. Employment promotion.The Secretary of Labor shall have the
power and authority:
e. "Private recruitment entity" means any person or association
engaged in the recruitment and placement of workers, locally
or overseas, without charging, directly or indirectly, any fee
from
the
workers
or
employers.
a. To organize and establish new employment offices in addition to
the existing employment offices under the Department of Labor
as
the
need
arises;
f. "Authority" means a document issued by the Department of
Labor authorizing a person or association to engage in
recruitment and placement activities as a private recruitment
entity.
b. To organize and establish a nationwide job clearance and
information system to inform applicants registering with a
particular employment office of job opportunities in other parts of
the country as well as job opportunities abroad;
g. "Seaman" means any person employed in a vessel engaged
in
maritime
navigation.
c.
profit or not: Provided, That any person or entity which, in any
manner, offers or promises for a fee, employment to two or
more persons shall be deemed engaged in recruitment and
placement.
h. "Overseas employment" means employment of a worker
outside
the
Philippines.
i. "Emigrant" means any person, worker or otherwise, who
emigrates to a foreign country by virtue of an immigrant visa
or resident permit or its equivalent in the country of
destination.
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Recruitment and placement
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Refers to any act of hiring or procuring workers.
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It includes:
a. Referrals
b. Contract services
c. Promising or advertising a local or overseas job
To develop and organize a program that will facilitate
occupational, industrial and geographical mobility of labor and
provide assistance in the relocation of workers from one area to
another;
and
d. To require any person, establishment, organization or institution
to submit such employment information as may be prescribed
by the Secretary of Labor.
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Purpose: to ensure the availability of adequate employment
services so that employment could be maximized through
efficient organization of the labor market.
Functions of public employment office:
1. Provide free placement of workers applying for both
domestic and overseas employment
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2. Provide adequate vocational guidance and testing
services to persons seeking help in choosing or
changing an occupation
3. Classify registered applicants in accordance with job
titles and codes of Philippine Standard Classification
4. Arrange for the training or retraining of unemployed
applicants in occupation or trades where they are
suitably qualified and where they have greater
prospects of employment.
5. Arrange for inter-area placements of unemployed
workers through a nationwide job clearance and
information system
6. Furnish the Bureau of Local Employment or POEA with
list of registered job applicants
Employers with at least 6 employees are obliged to submit a
monthly report to the nearest public employment office, on the ff:
1. List of existing job vacancies or openings
2. List of new employees, if there are any
3. Termination, lay-off or retirement
4. Total number of employed workers for the period; and
5. Request for assistance, if needed to fill vacancies or
openings
2. To establish and maintain a registration and/or
licensing system to regulate private sector
participation in the recruitment and placement of
workers, locally and overseas, and to secure the best
possible terms and conditions of employment for
Filipino contract workers and compliance therewith
under such rules and regulations as may be issued by
the
Minister
of
Labor;
To formulate and develop employment programs
designed to benefit disadvantaged groups and
communities;
4.
To establish and maintain a registration and/or work
permit system to regulate the employment of aliens;
5.
To develop a labor market information system in aid
of proper manpower and development planning;
6.
To develop a responsive vocational guidance and
testing system in aid of proper human resources
allocation; and
7.
To maintain a central registry of skills, except
seamen.
b. (Repealed by E.O. 797)
c. The Minister of Labor shall have the power to impose and
collect fees based on rates recommended by the Bureau of
Employment Services. Such fees shall be deposited in the
National Treasury as a special account of the General Fund,
for the promotion of the objectives of the Bureau of
Employment Services, subject to the provisions of Section 40
of Presidential Decree No. 1177.
Art. 15. Bureau of Employment Services.
a. The Bureau of Employment Services shall be primarily
responsible for developing and monitoring a comprehensive
employment program. It shall have the power and duty:
1. To formulate and develop plans and programs to
implement the employment promotion objectives of
this
Title;
3.
Art. 16. Private recruitment. Except as provided in Chapter II of this
Title, no person or entity other than the public employment offices, shall
engage in the recruitment and placement of workers.
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Purpose: intended to eliminate malpractices in the recruitment
and placement of workers and to enable the Government to
have a firmer control of the labor market.
Gen. Rule: only public employment offices can engage in
recruitment and placement of workers, whether for local or
overseas employment.
Exception: the private sector is given the privilege to engage in
recruitment and placement, but limited to the ff:
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a. Private employment agency
– refers to any person or entity engaged in the recruitment
and placement of workers for a fee which is charged directly
or indirectly, from the workers or employers or both.
b. Private recruitment entity
– refers to any person or association engaged in the
recruitment and placement of workers, locally or overseas,
without charging, directly or indirectly, any fee from the
workers or employers.
c.
Shipping or manning agency
– refers to any person, partnership, or corporation duly
licensed by the Secretary of DOLE or his duly authorized
representative to recruit and deploy seafarers for maritime
employment.
d. Such other persons or entities as may be authorized by the
Secretary of DOLE
Art. 17.Overseas Employment Development Board.-An Overseas
Employment Development Board is hereby created to undertake, in
cooperation with relevant entities and agencies, a systematic
program for overseas employment of Filipino workers in excess of
domestic needs and to protect their rights to fair and equitable
employment practices. It shall have the power and duty:
To promote the overseas employment of Filipino workers
through a comprehensive market promotion and development
program;
To secure the best possible terms and conditions of
employment of Filipino contract workers on a government-togovernment basis and to ensure compliance therewith;
To recruit and place workers for overseas employment on a
government-to-government arrangement and in such other sectors
as policy may dictate; and
To act as secretariat for the Board of Trustees of the
Welfare and Training Fund for Overseas Workers.
COMMENTS:
1. Overseas Employment Development Board Now Abolished
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E.O. No. 797 promulgated on May 1, 1982 abolished the
Overseas Employment Development Board (OEDB).
The Philippine Overseas Employment Administration (POEA)
was created instead.
POEA took over functions of OEDB and overseas functions of
Bureau of Employment Services.
2. Overseas Employment
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means employment of a worker outside the Philippines under a
valid contract.
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A worker who holds an overseas employment is commonly
called a migrant worker.
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Migrant worker not only refer to land-based workers but also to
seafarers.
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The definition of overseas employment does not make any
distinction regarding the nationality of the employer.
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It is not essential that the principal employer should be a
foreigner or non-Filipino in order that an employee could be
considered to be holding an overseas employment.
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The rationale for this is that Filipinos working overseas share the
same risks and burdens, whether their employers are Filipino or
non-Filipino.
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Eastern Shipping Lines vs. POEA
3. The Philippine Pverseas Employment Administration (POEA)
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POEA is the regulatory body for overseas employment.
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It has original and exclusive jurisdiction to hear and decide:
a. All cases which are administrative in character, involving or
arising out of violations of recruitment laws, rules and
regulations, including refund of fees collected from workers
and violation of the conditions for the issuance of license to
recruit landbased overseas workers or seafarers; and
b. Disciplinary action cases against migrant workers or
seafarers, foreign employers and principals that are
administrative in character.
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Decisions of the POEA are appealable to the Secretary of Labor
and Employment within 15 days from receipt of decision.
4. Recruitment Violations
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4.1 Against Land-based Overseas Workers
4.2 Against Seafarers
5. Grounds for Disciplinary Action
5.1 Against Foreign Employers of Land-based Workers
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The following are the grounds for disciplinary action against
foreign principals or employers of land-based workers:
a. Default on its contractual obligations to the migrant worker
and/or to its Philippine agent.
b. Gross violation of laws, rules and regulations on overseas
employment
c. Gross negligence leading to serious injury or illness or
death of the worker
d. Grave misconduct
e. Conviction of an offense involving moral turpitude
f. Any other case analogous to the foregoing.
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A foreign employer or principal against whom a complaint for
disciplinary action has been filed shall be temporarily
disqualified from participating in the overseas employment
program until he submits to the jurisdiction of the POEA
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Once the foreign employer or principal submits to the jurisdiction
of the POEA, particularly upon filing of an answer in the
disciplinary action proceedings, he shall again be qualified to
participate in the overseas employment program without
prejudice to the outcome of the investigation whereby the proper
penalty shall be imposed.
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However, if the evidence of guilt is strong and there is
reasonable ground to believe that the continued deployment to
the principal or employer will result to further violation or
exploitation of migrant workers, a principal or employer may be
suspended (preventively) from participating in the overseas
recruitment program pending investigation of the disciplinary
action case.
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employment program unless cleared by the POEA or the
penalty imposed is lifted.
5.2 Against Overseas Land-based Workers
If the penalty of suspension or disqualification is imposed
through an order, decision or resolution, the foreign employer or
principal shall be disqualified from participating in the overseas
The following are the grounds for disciplinary actions against
overseas land-based workers:
a. Pre-employment Offenses
i. Using, providing or submitting false information or
documents for purposes of job application or
employment
ii. Unjustified refusal to depart for the worksite after all
employment and travel documents have been duly
approved by the appropriate government agencies.
b. Offenses During Employment
i. Commission of a felony or crime punishable by
Philippine laws or by the laws of the host country.
ii. Unjustified breach of employment contract
iii. Embezzlement of company funds or monies and/or
properties of a fellow worker for delivery to kin or
relatives in the Philippines.
iv. Violation of the sacred practices of the host country
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A respondent worker subject of a pending complaint for
disciplinary action, or those against whom a warrant of arrest or
hold departure order is issued by competent authority shall be
disqualified from overseas employment unless temporarily
cleared.
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Upon filing of an answer the disciplinary action proceedings, the
respondent worker shall be qualified for overseas employment
without prejudice to the outcome of the investigation whereby
the proper penalty may be imposed.
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If the evidence of guilt is strong and the charge involves a
serious offense, the migrant worker may be preventively
suspended during the pendency of the disciplinary proceedings.
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If the penalty of suspension or disqualification is imposed
through an order, decision or resolution, the worker shall be
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disqualified from overseas employment unless cleared by the
POEA or the penalty imposed had been lifted.
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5.3 Against Foreign Principals or Employers of Seafarers
The following are the grounds for disciplinary action against
foreign principals or employers of seafarers:
a. Default on its contractual obligations to the seafarer and/or
to its Philippine agent
b. Gross violation of laws, rules and regulations on overseas
employment
c. Grave misconduct
d. Conviction of an offense involving moral turpitude
e. Gross negligence leading to serious injury or illness or
death of the seafarer
f. Any other case analogous to the foregoing
A foreign employer or principal against whom a complaint for
disciplinary action has been filed shall be temporarily
disqualified from participating in the maritime employment
program until he submits to the jurisdiction of the POEA
Once the principal or employer submits to the jurisdiction of the
POEA, particularly upon filing of an answer in the disciplinary
action proceedings, he shall again be qualified to participate in
the maritime employment program without prejudice to the
outcome of the investigation whereby the proper penalty shall
be imposed.
But if the evidence of guilt is strong and there is reasonable
ground to believe that the continued deployment to the principal
or employer will result to further violation or exploitation of
seafarers, the principal or employer may be suspended
(preventively) from participating in the overseas recruitment
program pending investigation of the disciplinary action case
when.
If the penalty of suspension or disqualification had been
imposed through an order, decision or resolution, the foreign
employer or principal shall be disqualified from participating in
the maritime employment unless cleared by the POEA or the
penalty imposed is lifted.
5.4 Against Seafarers
The following are the grounds for disciplinary action against
seafarers:
a. Pre-employment Offenses
i.
Submission/furnishing or using false information or
documents or any form of misrepresentation for purpose
of job application or employment
ii. Unjust refusal to join ship after all employment and
travel documents have been duly approved
b. Offenses During Employment
1. Smuggling or violation of any customs rule and
regulations of the Philippines and of foreign ports
i. Smuggling any taxable item
ii. Possession or use of prohibited drugs, narcotics
and other contraband
iii. Gun-running or possession of explosives and the
like
iv. Abetting or conniving with others to commit
smuggling
v. Misdeclaration of or failing to declare articles
leading to their seizure and fine to vessel
vi. Misdeclaration of or failing to declare articles
leading to their seizure but vessel is not implicated
vii. Possession of pornographic materials leading to its
seizure and fine to the vessel
viii. Any other violation which will not implicate the
vessel
ix. Any violation which will implicate the vessel
2. Desertion
i.
Deserting or attempting to desert employment
ii.
Advising, assisting or persuading another to desert
employment
3. Absence without leave
i. Abandoning the post or duty without being properly
relieved
ii. Leaving vessel without permission from responsible
officers during working hours
iii. Entrusting to others assigned duties without
authority of the department head
iv. Leaving vessel without permission
4. Sleeping on post while on duty
5. Insubordination
i. Any act of disobedience to lawful orders of a superior
officer
ii.
Attempting to assault a superior officer
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iii.
Assaulting a superior officer/other persons on
business with the ship without the use of deadly
weapon
iv. Assaulting a superior officer/other persons on
business with the ship with the use of deadly
weapon
v. Behaving with disrespect towards a superior officer
vi. Insulting a superior officer by words or deed
vii. Inciting another to commit insubordination
6.
Drunkenness
i.
Being drunk while on duty
ii.
Creating trouble on board due to intoxication
iii.
Failure to perform assigned jobs due to intoxication
7. Creating trouble outside the vessel’s premises
8. Gambling
i.
Which results in fighting or any incident as to upset
the harmonious relationship on board the vessel
ii.
Any form of gambling which is not purely
recreational
9. Violation of company policies
i.
Pilferafe or theft of ship’s store or cargo
ii.
Embezzlement of company funds or monies and/
or properties of a fellow worker entrusted for
delivery to kin or relatives in the Philippines
iii.
Unauthorized disposal of company vessel’s
properties for personal gain
iv.
Any act of dishonesty with intention to defraud the
company
v.
Gross negligence and failure to observe proper
storage and cargo handling procedures resulting in
delay of vessels and/or damage to cargoes
vi.
Failure to observe and comply with regulation and
non-baggage shipment and acceptance of parcels
on board.
vii.
Failure to observe regulations on expiration of
liberty
viii.
Being left behind by vessel in foreign port without
justifiable reason
ix.
Disorderly conduct and/or disrespect towards
passengers
x.
Immorality as to cast aspersion on the good name
of the vessel and company
xi.
Willfully inflicting harm or injury to others
10. Incompetency and inefficiency
11. Inciting mutiny, malicious destruction of ship’s property
at any activity which will hamper the efficient operation
of the vessel
12. Converted action to breach approved contracts
13. Any activity which tends to destroy harmonious
relationship of the company
14. Grave abuse of authority
i.
Grave abuse of authority (with use of deadly
weapon) resulting in harm or injury to subordinate
ii.
Grave abuse of authority (without use of deadly
weapon) resulting in harm or injury to subordinate
iii.
Any other case of abuse of authority
15. Other gross misbehaviors prejudicial to good order and
discipline
16. Negligence causing damage, loss, spoilage or
deterioration of vessel’s stocks and property
17. Connivance with of cuddling of stowaway
18. Willfully making false statement, reports, certification or
spurious seafarer’s documents for personal gain or with
intent to mislead or defraud the company
19. Any other cases as to cast aspersion on the good name
of the company and vessel
20. Violation of safety and environmental rules and
regulations
21. Failure to observe the drug and alcohol policy of the
company.
6.
Enforcement of a Foreign Judgment
8
The POEA has no jurisdiction to hear and decide a suit for
enforcement of a judgment rendered by a foreign court.
8
Action of this nature should be brought before the regular courts
of justice.
7.
8
Power of POEA to Recruit and Place Workers
The POEA has the power to recruit and place workers on a
government-to-government arrangement, particularly with
regard to the hiring requirements of foreign government
instrumentalities.
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8
It may recruit and place workers for foreign employers in such
sectors as the policy may dictate.
Art. 18.Ban on direct-hiring.- No employer may hire a Filipino
worker for overseas employment except through the Boards and
entities authorized by the Secretary of Labor. Direct-hiring by
members of the diplomatic corps, international organizations and
such other employers as may be allowed by the Secretary of Labor
is exempted from this provision.
COMMENTS:
1. Rationale for the Law
8
Art. 18 is intended to enable the monitoring of overseas contract
workers and
8
to ensure that Filipino overseas workers are afforded fair and
equitable recruitment and employment
practices thereby
assuring the best terms and conditions of employment and
facilitating the enforcement of employment contracts.
2. Exception to the Ban on Direct-Hiring
8
prohibition against direct hiring of overseas workers does not
apply to workers hired by:
a. members of the diplomatic corps;
b. international organizations; and
c. other employers who may be allowed by the Secretary of
Labor and Employment to directly hire their workers.
3. Name Hire
8
A name hire is a worker who is able to secure an overseas
employment on his own without the assistance or participation
of any agency.
4. Registration of Name Hires
8
Name hires should register with the POEA by submitting the
following documents:
a. Employment contract
b. Valid passport
c. Employment visa or work permit, or equivalent document
d. Certificate of medical fitness
e. Certificate of attendance to the required employment
orientation/ briefing.
Article 19.Office of Emigrant Affairs. - Pursuant to the national
policy to maintain close ties with Filipino migrant communities and
promote their welfare as well as establish a data bank in aid of
national manpower policy formulation, an Office of Emigrant
Affairs is hereby created in the Department of Labor. The Office
shall be a unit at the Office of the Secretary and shall initially be
manned and operated by such personnel and through such
funding as are available within the Department and its attached
agencies. Thereafter, its appropriation shall be made part of the
regular General Appropriations Decree.
The office shall, among others, promote the well-being of
emigrants and maintain their close link to the homeland by:
serving as a liaison with migrant communities;
provision of welfare and cultural services;
promote and facilitate re-integration of migrants into the
national mainstream;
promote economic; political and cultural ties with the
communities; and
generally to undertake such activities as may be
appropriate to enhance such cooperative links.
COMMENTS:
Superseded by Batas Pambansa Blg. 79
Article 20.National Seamen Board. - A National Seamen Board is
hereby created which shall develop and maintain a comprehensive
program for Filipino seamen employed overseas. It shall have the
power and duty:
To provide free placement services for seamen;
To regulate and supervise the activities of agents or
representatives of shipping companies in the hiring of seamen for
overseas employment and secure the best possible terms of
employment for contract seamen workers and secure compliance
therewith;
To maintain a complete registry of all Filipino seamen.
The Board shall have original and exclusive jurisdiction
over all matters or cases including money claims, involving
employer-employee relations, arising out of or by virtue of any law
or contracts involving Filipino seamen for overseas employment.
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The decisions of the Board shall be appealable to the National
Labor Relations Commission upon the same grounds provided in
Article 223 hereof. The decisions of the National Labor Relations
Commission shall be final and inappealable.
COMMENTS:
Repealed by Executive Order No. 797
Article 21.Foreign service role and participation.- To provide ample
protection to Filipino workers abroad, the labor attaches, the labor
reporting officers duly designated by the Secretary of Labor and
the Philippine diplomatic or consular officials concerned shall,
even without prior instruction or advice from the home office,
exercise the power and duty:
To provide all Filipino workers within their jurisdiction
assistance on all matters arising out of employment;
To insure that Filipino workers are not exploited or
discriminated against;
To verify and certify as requisite to authentication that the
terms and conditions of employment in contracts involving Filipino
workers are in accordance with the Labor Code and rules and
regulations of the Overseas Employment Development Board and
National Seamen Board;
To make continuing studies or researches and
recommendations on the various aspects of the employment
market within their jurisdiction;
To gather and analyze information on the employment
situation and its probable trends, and to make such information
available; and
To perform such other duties as may be required of them
from time to time.
COMMENTS:
1. Reason for the Law
8
Art. 21 is intended to protect the overseas workers by ensuring
that they are not exploited or discriminated against.
8
8
The protection of the Filipino migrant worker and the promotion
of their welfare, in particular, and the protection of the dignity
and fundamental rights and freedoms of Filipino citizens abroad,
in general, shall be the highest priority concerns of the Secretary
of Foreign Affairs and the Philippine Foreign Service Posts.
8
2. Country-Team Approach
8
As enunciated under Executive Order No. 74 series of 1993, the
country-team approach shall be the mode under which
Philippine embassies or their personnel will operate in the
protection of the Filipino migrant workers as well as in the
promotion of their welfare.
8
All officers, representatives and personnel of the Philippine
government posted abroad regardless of their mother agencies
shall, on a per country basis, act as one country-team with a
mission under the leadership of the ambassador
8
The ambassador may recommend to the Secretary of DFA the
recall of officers, representatives and personnel of the Philippine
government posted abroad for acts inimical to the national
interest such as, but not limited to failure provide the necessary
services to protect the right of overseas Filipinos.
3. Services Available to Migrant Filipino Workers
8
To protect and promote the welfare of migrant Filipino workers,
the following services are being extended by the government:
a. Travel Advisory / Information Dissemination - all embassies
and consular offices, through POEA, are obliged to issue
travel advisories on labor and employment conditions,
migration realities and other facts. This is intended to
prevent illegal recruitment, fraud and exploitation or abuse
of Filipino migrant workers.
b. Repatriation of Workers – The Overseas Workers Welfare
Administration (OWWA), shall undertake the repatriation of
workers in case of war, epidemic, disasters or calamities
natural or man-made, and other similar events without
prejudice to reimbursement by the responsible principal or
agency. In case the principal or agency cannot be identified,
all costs attendant to repatriations shall be borne by the
OWWA.
c.
Mandatory Repatriation of Underage Migrant Workers –
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upon discovery or being informed of the presence of migrant
workers whose actual ages fall below the minimum age
requirement for overseas deployment, the responsible
officers in foreign service shall without delay repatriate said
workers and advise the DFA through the fastest means of
communication available of such discovery and other
relevant information.
d. Migrant Workers and Other Overseas Filipinos Resource
Center– within the premise of and under the administrative
jurisdiction of the Philippine embassy where there are large
concentrations of Filipino migrant workers, a Migrant
Workers and Other Overseas Filipinos Resource Center
have been established for the purpose of extending the
following services:
i.
ii.
iii.
iv.
v.
vi.
vii.
viii.
8
Counseling and legal services
Welfare assistance including the procurement of
medical and hospitalization services.
Information, advisory and programs to promote social
integration such as post-arrival orientation, settlement
and community networking services and activities for
social interaction
Institute a scheme of registration of undocumented
workers to bring them within the purview of the Migrant
Workers and Overseas Filipinos Act of 1995
Human resource development, such as training and
skills upgrading
Gender sensitive programs and activities to assist
particular needs of women migrant workers
Orientation program for returning workers and other
migrants
Monitoring of daily situations, circumstances and
activities affecting migrant workers and other overseas
Filipinos.
The center is open for 24 hours daily including Saturdays,
Sundays and holidays, and staffed by foreign service personnel,
service attaches or officers who represent other Philippine
government agencies abroad and if available, individual
volunteers and bona fide non-government organizations from
the host countries.
8
The Center has a counterpart 24-hour information and
assistance at the DFA to ensure a continuous network and
coordinative mechanism at the home office.
4. The Legal Assistant for Migrant Workers Affairs
8
The Legal Assistant for Migrant Workers Affairs (which is under
the DFA) is primarily responsible for the provision and overall
coordination of all legal assistance services to be provided to
Filipino migrant workers as well as overseas Filipinos in
distress. Among the functions and responsibilities of the Legal
Assistant are:
a. To issue guidelines, procedure and criteria for the provision
of legal assistance services to Filipino migrant workers
b. To establish close linkages with the DOLE, POEA, OWWA
and other government agencies concerned, as well as non
governmental organizations assisting migrant workers, to
ensure effective coordination and cooperation in the
provision of legal assistance to migrant workers
c. To tap the assistance of reputable law firms and the
Integrated Bar of the Philippines and other bar associations
to complement the government’s efforts to provide legal
assistance to migrant workers
d. To administer the legal assistance fund for migrant workers
and authorize disbursements therefrom in accordance with
the purposes for which the fund was set up
e. To keep and maintain the shared government information
system form migrant workers.
8
The Legal Assistant for Migrant Workers Affairs is authorized to
hire private lawyers, domestic or foreign, in order to assist him in
the effective discharge of his functions.
5. Role of Government Agencies
8
The following government agencies shall perform the following
to promote the welfare and protect the rights of migrant workers
and, as far as practicable, all overseas Filipinos:
a. DFA – The Department, through it’s home office or foreign
posts, shall take priority action or make representation with
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the foreign authority concerned to protect the rights of
migrant workers and other overseas Filipinos and extend
immediate assistance including the repatriation of
distressed or beleaguered migrant workers and other
overseas Filipinos.
b. DOLE – The Department of Labor and Employment shall
see to it that labor and social welfare laws in the foreign
countries are fairly applied to migrant workers and
whenever applicable, to other overseas Filipinos including
the grant of legal assistance and referral to proper medical
centers or hospitals.
c.
POEA – The POEA shall regulate private sector
participation in the recruitment and overseas placement of
workers by setting up a licensing and registration system. It
shall also formulate and implement, in coordination with
appropriate entities concerned, when necessary, a system
for promoting and monitoring the overseas employment of
Filipino workers taking into consideration their welfare and
domestic manpower requirements.
d. OWWA – The Welfare Officer or in his absence, the
coordinating officer, shall provide the Filipino migrant worker
and his family all the assistance they may need in the
enforcement of contractual obligations by agencies or
entities and/or their principals. In the performance of this
function, he shall make representation and may call on the
agencies or entities concerned to conference or conciliation
meetings for the purpose of settling the complaints or
problems brought to his attention.
Article 22.Mandatory remittance of foreign exchange earnings.- It
shall be mandatory for all Filipino workers abroad to remit a
portion of their foreign exchange earnings to their families,
dependents, and/or beneficiaries in the country in accordance with
rules and regulations prescribed by the Secretary of Labor.
COMMENTS:
1. Remittance of Portion of the Worker’s Foreign Exchange Earnings
8
Art. 22 makes it mandatory for all overseas Filipino workers to
remit a portion of their foreign exchange earnings to their
families, dependents and beneficiaries.
a. 80% of basic salary – for seamen or mariners
b. 70% of basic salary – for workers of Filipino contractors and
construction companies
c. 70% of basic salary – for doctors, engineers, teachers,
nurses and other professional workers whose employment
contracts provide for free board and lodging facilities
d. 50% of basic salary – for other professionals whose
employment contracts do not provide for free board and
lodging
e. 50% of basic salary – for domestics and other service
workers
f. 50% of basic salary – for other workers not falling under the
aforementioned categories.
2. Exceptions to the Remittance Requirement
8
The following workers are not obliged to remit a portion of their
foreign exchange earnings:
a. Workers whose immediate family members, dependents or
beneficiaries are residing with him abroad
b. Filipino servicemen working in the U.S. military installations
c. Immigrants and Filipino professionals and employees
working with the United Nations agencies or specialized
bodies.
Article 23.Composition of the Boards. - The OEDB shall be
composed of the Secretary of Labor and Employment as Chairman,
the Undersecretary of Labor as Vice-Chairman, and a
representative each of the Department of Foreign Affairs, the
Department of National Defense, the Central Bank, the Department
of Education, Culture and Sports, the National Manpower and
Youth Council, the Bureau of Employment Services, a workers’
organization and an employers’ organization and the Executive
Director of the OEDB as members.
The National Seamen Board shall be composed of the
Secretary of Labor and Employment as Chairman, the
Undersecretary of Labor as Vice-Chairman, the Commandant of the
Philippine Coast Guard, and a representative each of the
Department of Foreign Affairs, the Department of Education,
Culture and Sports, the Central Bank, the Maritime Industry
Authority, the Bureau of Employment Services, a national shipping
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association and the Executive Director of the NSB as members.
The members of the Boards shall receive allowances to be
determined by the Board which shall not be more than P2,000.00
per month.
The Boards shall be attached to the Department of Labor
for policy and program coordination. They shall each be assisted
by a Secretariat headed by an Executive Director who shall be a
Filipino citizen with sufficient experience in manpower
administration, including overseas employment activities. The
Executive Director shall be appointed by the President of the
Philippines upon the recommendation of the Secretary of Labor
and shall receive an annual salary as fixed by law. The Secretary of
Labor shall appoint the other members of the Secretariat.
The Auditor General shall appoint his representative to the
Boards to audit their respective accounts in accordance with
auditing laws and pertinent rules and regulations.
COMMENTS:
Repealed by Executive Order No. 797
Article 24.Boards to issue rules and collect fees.- The Boards shall
issue appropriate rules and regulations to carry out their functions.
They shall have the power to impose and collect fees from
employers concerned, which shall be deposited in the respective
accounts of said Boards and be used by them exclusively to
promote their objectives.
COMMENTS:
Superseded by Executive Order No. 247
CHAPTER 2
REGULATION OF RECRUITMENT AND PLACEMENT ACTIVITIES
Article 25.Private sector participation in the recruitment and
placement of workers.- Pursuant to national development
objectives and in order to harness and maximize the use of private
sector resources and initiative in the development and
implementation of a comprehensive employment program, the
private employment sector shall participate in the recruitment and
placement of workers, locally and overseas, under such guidelines,
rules and regulations as may be issued by the Secretary of Labor.
COMMENTS:
1. Recruitment and Placement of Employees for Local Employment
8
A private recruitment and placement agency for local
employment can engage in recruitment and placement only
under the following conditions:
a. It must have a license to operate as a recruitment and
placement agency.
b. It must have an authority to engage in recruitment
activities in a particular region.
1.1
Procedure for Obtaining a License
A person desiring to operate a private employment
agency for local employment should:
a. File an application for license with the Regional
Office of the Department of Labor and Employment
having jurisdiction over the place where the
applicant seeks to establish his main office
b. Pay a filing fee of P500, if single proprietor or
P2000, if corporation or partnership
8
The following documents should be attached to the
application for license:
a. Certified copy of the Certificate of Registration of
firm or business name from the DTI, in the case of a
single proprietorship, or a certified copy of the
Articles of Incorporation duly registered with the
SEC, in the case of a partnership or corporation
b. A sworn statement of assets and liabilities and/or a
duly audited financial statement, as the case may
be
c. Owner’s certificate/title’of office location or contract
of lease of office space for at least 2 years.
d. NBI clearance of the applicant, or the partners in the
case of partnership or all the officers and members
of the Board of Directors, in the case of corporation
e. Income tax return for the last 2 years
f. A verified undertaking that the applicant shall:
i. Not engage in recruitment of children below 15 years of
age or place children below 18 years old in hazardous
8
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occupation in accordance with RA No. 7610 as
amended by RA No. 7658 and other related laws
ii.
Assume full responsibility for all claims and liabilities
which may arise in connection with the use of the
license.
g. Organizational structure and list of all officers and
personnel with their respective bio-data, 2 passportsize ID pictures and a detailed description of their
duties and responsibilities
h. Specific address and location map of the Office or
proposed Office
i. List of all authorized representatives, if any, who
must be at least high school graduate, with their
corresponding bio-date, 2 passport-size ID pictures,
high school diploma or other proof of educational
attainment duly authenticated, NBI clearance and
Special Power of Attorney.
8
Within 15 days from the issuance of the license, the
employment agency shall publish once in a newspaper of
general circulation the license number, names and
pictures of authorized representatives and submit a copy
thereof to the DOLE
8
The license (original or a copy thereof) shall be displayed
conspicuously at all times in the premises of the private
recruitment and placement agency
8
In addiction to the foregoing requirements, an applicant
for a license to operate a private recruitment and
placement agency for local employment must possess the
following qualifications:
a. The owner, partners or officers of the corporation
must be of good moral character and not otherwise
disqualified by law
b. Must have an office space with a minimum floor
area of 50 square meters.
1.2 Duration of License
8 The license of a private employment agency for local
employment is valid for 2 years from date of
issuance, subject to submission of proof of
publication.
8
8 The license is valid all over the Philippines.
1.3 Renewal of License
8 The license of a private employment agency for local
employment may be renewed not later than 30 days
before its expiration.
8 A private employment agency will not be allowed to
renew its license:
a. If it has been convicted by the regular courts for
violation of the Labor Code, as amended, and its
Implementing Rules
b. If its license has been previously revoked.
1.4 Conduct of Recruitment
8
Apart from the license, a private employment agency
for local employment is obliged to secure an
authority to recruit workers within a particular region.
8
The authority to recruit shall be terminus with the
license, unless sooner revoked/canceled by the
issuing Regional Office or terminated by the Agency.
8
The authority to recruit may be obtained by filing with
the Regional Office of the DOLE having jurisdiction
over the place where the recruitment activities will be
undertaken, an application for authority to recruit with
the following supporting documents:
a. Letter request by the agency
b. Copy of current license
c. Certification under oath of licensee on the
proposed
recruitment
activities
of
the
representative
d. NBI clearance and bio-data of the representative
with 2 ID pictures
e. Clearance from previous agency, if applicable
f. Previous authority to recruit in case of renewal.
8 The application (new or renewal) may be denied on
any of the following grounds:
a. Non-compliance with the requirements
b. Unresolved illegal recruitment case
c. Pendency of case against the applicant or the
agency
Duly authorized representatives of a private recruitment and
placement agency for local employment can engage in
recruitment activities if their names are registered with the
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Regional Office of the DOLE. Steps to be followed in the
recruitment of workers for local employment are:
a. The Agency or its duly authorized representative
shall present to the PESO, Provincial and District
Office where the recruitment activity is to be
undertaken, a copy of existing license, and
original copy of authority to recruit issued by the
Regional Office concerned.
b. The representative shall require the recruit to
submit a copy of each of the following:
i. Birth certificate from the local civil registrar
ii. Medical certificate issued by a government physician or
by a reputable private medical practitioner
c. The Agency or its authorized representative and
the recruit shall enter into a recruitment contract,
duly notarized a copy of which shall be submitted
to the Regional Office where recruitment activity
was undertaken.
d. The Agency or its duly authorized representative
shall submit a list of the names and addresses of
its recruits together with a copy of their birth
certificates and medical certificates, to the
Regional offices or the appropriate Provincial
District Office where recruitment was undertaken
for appropriate authentication and validation.
Copies of these documents shall be furnished to
the Regional Office of destination of the recruit.
e. After the recruitment activity, the Regional Office
of origin shall issue a certification to the Agency
or its duly authorized representative that the
recruitment activity has been in accordance with
the rules, copy furnished the Marine Policy/Coast
Guard/Philippine National Police, as the case may
be.
f. Provide to the recruit with a stamped envelope
form indicating the name, address of recruit and
the name, address, telephone number of his/her
employer to be sent to the parent.
g. Prior to deployment, the Regional Office of origin
shall notify the Regional Office of destination of
the arrival of the recruits, and the latter shall see
to it that the terms and conditions of the
recruitment contract are followed strictly.
and Placement of Employees for Overseas
2. Recruitment
Employment
2.1 For Land-Based Overseas Employment
8
A private employment agency for land-based overseas
employment can engage in recruitment and placement only
under the following conditions:
a. It should have a license to operate
b. It should recruit and place workers only for foreign
principals or projects registered and accredited by
the POEA.
2.2 For Overseas Maritime Employment
8
A manning agency for overseas maritime employment can
engage in recruitment and placement only under the following
conditions:
a. It should have a license to operate
b. It should recruit and place seafarers only for
foreign principals registered and accredited by the
POEA.
c. It should place seafarers only on vessels that are
enrolled with the POEA.
2.3 Procedure for Obtaining a License
2.3.1 For Land-Based Overseas Employment
8 A person desiring to operate a private
employment agency for land-based
overseas employment should
a. File an application for license with the
POEA
b. Pay a filing fee of P10000
8 The following documents should be
attached to the application for license
a. Certified
copy
of
Articles
of
Incorporation or Articles of Partnership
duly registred with the Securities and
Exchange Commission (in case of a
corporation
or
partnership)
or
Certificate of Registration of firm or
business name with the DTI (in case of
a single proprietorship)
b. Proof of financial capacity consisting of
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For single proprietorship or partnership
– verified income tax returns for the
past 2 years and a savings account
certificate showing a maintaining
balance of not less than P500k
accompanied by the applicant’s
authorization to examine such bank
deposit.
For newly organized corporation –
Savings account certificates showing a
maintaining balance of not less than
P500k
accompanied
by
an
authorization to examine such bank
deposits
For existing corporation – Verified
financial statement, corporate tax
returns for the past 2 years and
savings account deposit of at least
P500k
accompanied
by
an
authorization to examine such deposit.
c. Proof of marketing capability of:
i. A duly executed Special Power of
Attorney and/ or a duly concluded
Recruitment/ Service Agreement
ii. Manpower
request
or
visa
certification from new employer or
principal for not less than 100
workers
iii. Certification from Pre-employment
Services Office of the POEA on the
existence of the new market.
d. Clearance of all members of the Board
of Directors, partner or proprietor of
the applicant agency from the National
Bureau of Investigation and other
government agencies as may be
required; appropriate clearance in
case of persons with criminal cases;
provided that where the member or
partner concerned is a foreigner, a
clearance from his country of origin
shall be required
e. A verified undertaking that the
applicant shall:
i. Select
only
medically
and
technically qualified recruits
ii. Assume
full
and
complete
responsibility for all claims and
liabilities which may arise in
connection with the use of license
iii. Assume joint and solidary liability
with the employer for all claims that
may arise in connection with the
implementation of the contract,
including but not limited to,
payment of wages, death and
disability
compensation
and
repatriation
iv. Guarantee compliance with the
existing
labor
and
social
legislations of the Philippines and
of the country of employment of
recruited workers
v. Assume
full
and
complete
responsibility for all acts of its
officials,
employees
and
representatives done in connection
with recruitment and placement
vi. Negotiate for the best terms and
conditions of employment
vii. Disclose the full terms and
conditions of employment to the
applicant workers
viii.
Deploy at least 100 workers to
its new markets within 1 year from
the issuance of its license
ix. Provide orientation on recruitment
procedures, terms and conditions
and other relevant information to its
workers and provide facilities
therefore
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x. Repatriate the deployed workers
and his personal belongings when
the need arises.
f. Verified undertaking by its officers,
directors, partners (in case of
corporations or partnerships) that they
will be jointly and severally liable
g. Individual income tax return of the
proprietor,
partners,
stockholders/incorporators, as the
case may be for the past 2 years
h. Proof of possession by the sole
proprietor, partner or chief executive
officer, as the case may be, of a
bachelor’s degree and 3 years
business experience.
i. List of all officials and persons
involved in the recruitment and
placement,
together
with
their
appointment, bio-data and 2 copies of
their passport-sized pictures as well as
their clearances from the NBI and the
Anti-Illegal Recruitment Branch of the
POEA
j. Copy of the Contract of Lease or proof
of building ownership, indicating the
office address, providing for an office
space of at least 100 square meters.
k. Proof of publication of notice of the
application with the names of the
proprietor, partners, incorporators or
officers
l. Certificate of attendance of owner
and/or chief executive officer in a preapplication seminar conducted by the
POEA.
2.3.2 For Overseas Maritime Employment
8
A person desiring to operate a manning
agency for overseas employment should
a. File an application for license with the
POEA
8
b. Pay a filing fee of P10k
The following documents should be
attached to the application for license
a. Certified
copy
of
Articles
of
Incorporation or Articles of Partnership
duly registered with the SEC (in case
of a corporation or partnership) or
Certificate of Registration of firm or
business name with the DTI (in case of
single proprietorship)
b. Proof of financial capacity (check
book)
c. Proof of marketing capability (check
book)
d. Clearance of all members of the Board
of Directors, partner or proprietor of
the applicant agency from the NBI,
Anti-Illegal Recruitment Branch of the
POEA and other government agencies
as the need may require; provided that
where the member or partner
concerned is a foreigner, a clearance
from his country of origin shall be
required
e. Verified undertaking that the applicant
shall:
i. Provide its seafarers orientation on
recruitment
policies
and
procedures, terms and conditions
of employment and other relevant
information
ii. Ensure that any seafarer recruited
or deployed by them is qualified
and
holds
the
documents
necessary for the job concerned
iii. Ensure
that
contracts
of
employment are in accordance with
the standard employment contract
and
other
applicable
laws,
regulations
and
collective
bargaining agreements
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iv. Ensure that seafarers are informed
of their rights and duties under their
contracts of employment and the
duties of agreement prior to or in
the process of engagement
v. Ensure that proper arrangements
are made for seafarers to examine
their contracts of employment and
articles of agreement before and
after they are signed and for them
to receive a copy of the contract of
employment
vi. Ensure that the vessel and the
crew are adequately covered by
P&I Club or similar insurance thru
the submission of the certificate of
insurance coverage
vii. Assume
full
and
complete
responsibility for all claims and
liabilities which may arise in
connection with the use of license
viii.
Assume joint and solidary
liability with the employer for all
claims that may arise in connection
with the implementation of the
contract, including but not limited
to, payment of wages, death and
disability
compensation
and
repatriation
ix. Guarantee compliance with the
applicable
labor,
social
and
maritime
legislations
of
the
Philippines, and the applicable
regulations of the flag state and
international organizations such as
the
international
Maritime
Organization
(IMO)
and
the
International Labor Organization
x. Assume
full
and
complete
responsibility for all acts of its
officials,
employees
and
f.
g.
h.
i.
j.
k.
representatives done in connection
with recruitment and placement
xi. Deploy at least 50 workers to its
new markets within 1 year from the
issuance of its license which shall
also be a condition to the
accreditation of old principals
xii. Repatriate the deployed workers
and his personal belongings when
the need arises.
Verified undertaking by its officers,
directors, partnersthat they will be
jointly and severally liable with the
company over claims arising from
employer-employee relationship
Individual income tax return of the
proprietor, partners, stockholders/
incorporators, as the case may be for
the past 2 years.
Proof of possession by the sole
proprietor, partner or chief executive
officer, as the case may be, of a
bachelor’s degree and 3 years
business experience.
Proof of possession by the sole
proprietor, partner or chief executive
officer, as the case may be, of a
bachelor’s degree and 3 years
business experience
List of all officials and persons
involved in the recruitment and
placement,
together
with
their
appointment, bio-data and 2 copies of
their passport-sized pictures as well as
their clearances from the NBI and AntiIllegal Recruitment Branch of the
POEA
Copy of the Contract of Lease or proof
of building ownership, indicating the
office address, providing for an office
space of at least 100 square meters
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•
•
a.
b.
c.
•
l. Proof of publication of notice of the
application with the names of the
proprietor, partners, incorporators or
officers
m. Certificate of attendance of owner
and/or chief executive officer in a preapplication seminar conducted by the
POEA.
2.3.3 For POCB-Registered Company
8 POCB-registered
companies
with
overseas projects duly accredited by the
POCB should:
a. File an application for license with the
POEA
b. Pay a filing fee of P10k and post a
surety bond of P50k and escrow
deposit of P200k, upon approval of the
application
8 The following documents should be
attached to the application for license
a. Articles of Incorporation
b. Certified true copy of its POCB
certificate of registration
c. Proof of payment of non-refundable
fee of P10k
POCB-registered
companies
without
POCB-accredited
overseas projects shall follow the normal requirements for
obtaining a license or renewal thereof.
Duration of license:
For overseas land-based employment – 4 yrs form the date of
issuance. The license is valid only in the place specified therein
For overseas maritime employment - 4 yrs form the date of
issuance. The license is valid only in the place specified therein
For POCB-registered companies - 4 yrs form the date of
issuance and is co-terminus with the validity of the POCB
registration
Provisional license – a permit issued to a new recruitment or
manning agency for a limited period of 1 yr, within which period,
•
•
•
the agency shall comply with its undertaking to deploy 100 landbased workers or 50 seafarers to its new marker.
Non-compliance will result in the expiration of the provisional
license.
Renewal of license may be made on or before its expiration. If
made thereafter, 30 days from the expiry thereof, subject to
payment of fine of 10k.
If the application for the renewal of license has been timely and
sufficiently filed, the existing license shall not expire until the
application shall have been finally determined by the POEA.
•
Conduct of recruitment for land-based overseas workers:
8
Can recruit employees only in behalf of foreign
principals or projects that are registered and accredited
by the POEA. To do otherwise may result in the
suspension or cancellation of license.
•
Registration procedure:
a. Submit to the Philippine Overseas Labor Office (POLO) the
ff documents for verification:
1. SPA issued by the principal or employer to the
Philippine agency, or recruitment agreement or service
agreement
2. Master employment contract
3. Manpower request indicating the position and salary of
the workers to be hired
4. Valid business license, registration certificate or
equivalent document
b. File with the POEA, an application for registration, with the
supporting documents (nos. 1, 2, and 3)
•
Registration is valid for a period of 4 yrs, unless sooner revoked
or cancelled by the POEA on any of the ff grounds: (FFEP)
a. Expiration of the principal’s business license
b. Pre-termination of the Agreement, upon written mutual
agreement by the parties
c. False documentation or misrepresentation in connection
with the application for registration, and
d. Final judgment in disciplinary action against the foreign
principal
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Verification – refers to act performed by a POLOfficer, or any
other officer designated by the Sec of DOLE in the Philippine
embassy or consulate, in reviewing and verifying the recruitment
documents of foreign principals, including the employment
contracts of Filipino nationals.
•
A foreign principal that acts as direct employer may be
registered to more than one Philippine agency, under the ff
conditions:
1. A uniform compensation package shall be adopted by the
principal and the agency
2. The principal has a verified job order at at least 50 workers;
or
3. That the principal must have hired at least 50 workers within
a period one yr immediately preceding the registration
A principal that is licensed to operate as foreign replacement
agency by its government may be registered to a maximum of 2
Philippine agencies, provided that under the preceding
conditions.
The registration of a foreign placement agency may be
transferred to another agency, provided that:
a. The compensation package previously approved by the
POEA shall be maintained; and
b. The transferee shall assume full and complete responsibility
for all contractual obligations of the principals to its workers
originally recruited and processed by the former agency.
•
•
•
Accreditation procedure:
a. SPA
b. Master employment contract
c. Manpower request
d. Valid business license
e. Visa assurance
•
The accreditation of a foreign principal, employer or project shall
be valid for 4 yrs, unless sooner revoked or cancelled by the
POEA on the grounds provided for the cancellation or
revocation of a license.
•
A manning agency for overseas maritime employment can
recruit workers only in behalf of foreign principals that are
registered and accredited by the POEA and to vessels that are
enrolled with the POEA. To do otherwise may result in the
suspension or cancellation of license.
•
A principal may be registered to a maximum of 3 manning
agencies provided that a minimum wage and compensation
package shall be adopted by the principal for all seafarers
employed through the agencies taking into consideration the
type of the vessel and its operations.
•
The registration of a principal and/or enrolment of vessel may be
transferred to another agency, provided that:
a. The transfer does not involve diminution of wages and
benefits of the seafarers hired through the previous agency
b. The transferee shall assume full and complete responsibility
for all contractual obligations of the principal to the seafarers
originally recruited and processed by the former agency.
•
Prior to the transfer of registration, the POEA must notify the
previous agency and principal of such application for transfer.
•
Only duly licensed manning agencies may file an application for
accreditation of principals and enrolment of ships. In the
absence of a POLO in the principal place of business of the
foreign employers or vessel owner/mngr/operator to verify the
manning documents, accreditation shall be conducted at the
POEA.
Authentication of documents of foreign principals shall be
undertaken by any of the ff:
a. Appropriate official of the Philippine embassy or consulate,
or the authorized Philippine foreign representative, in the
absence of a Philippine mission; or
b. Appropriate official of any designated government ministries
or offices of the host country.
•
•
Accreditation procedure:
a. File an application with the ff documents:
1. Authenticated manning agreement and SPA
2. List of ship and their particulars including IMO numbers
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•
•
•
•
•
•
•
•
•
3. Crew complement of the principal and their
corresponding wage scales
4. valid business license
5. other documents which the administration may find
necessary
The accreditation shall be valid for a period of 4 yrs from the
date of issuance, unless sooner revoked by the POEA on the
grounds provided therefor.
The expiration of the agency’s license merely suspends the
accreditation until the renewal of the license
Provisional accreditation – 90 days
A principal may be accredited to a maximum of 3 manning
agencies, provided that a uniform wage and compensation
package shall be adopted by the principal fort all seafarers
employed through the agencies taking into consideration the
type of vessel and its operations
The accreditation of a principal and/or the enrolment of a vessel
may be transferred to another agency, provided:
a. Such transfer shall not involve diminution of benefits and
wages of the seafarers hired through the previous agency
b. The transferee agency shall assume full and complete
responsibility to all contractual obligations of the principal of
such application for such transfer
In case of change of vessel or management involving a change
in the principal, the agency of the new principal automatically
assumes full and complete responsibility over all seafarers
originally recruited and deployed by the previous agent, if the
seafarers opt to sign an employment contract with the new
principal. Otherwise, the agency shall retrain full responsibility
over the contractual obligation of its principal.
The accreditation may be renewed upon request by the agency,
provided that the documents required for initial accreditation are
still valid.
Licensed employment or manning agencies may advertise for
actual job vacancies without prior approval from the POEA, if
covered by manpower requests by registered/accredited foreign
principals and projects.
Licensed employment or manning agencies may advertise for
manpower pooling without prior approval from POEA.
•
•
•
•
Foreign principals/employers who wish to advertise overseas
job vacancies may do so only through a POEA-licensed agency
or through the POEA.
Documentation of workers:
For new hires (land-based)
8
The ff documents shall be submitted to the POEA for
documentation of new hires:
1. Request for processing, indicating the names,
positions and salaries of workers using the
prescribed form of the POEA.
2. Standard employment contract
3. Other documents that the POEA may find
necessary
An employment or manning agency shall deploy its hired
workers/seafarers within 60 days from the date of issuance of
the overseas employment certificate. Failure on the part of the
recruitment or manning agency to deploy a worker within the
prescribed period may result in imposition of sanctions ranging
from reprimand to cancellation of license.
If the deployment of the worker/ seafarer does not materialize
within 30 days from the lapse of the period to deploy, the
agency shall report the non-deployment and the reasons
therefor and apply to the POEA for the cancellation of the
worker’s processed documents. If the deployment of the
worker/seafarer does not materialize due to his fault, the agency
may charge the worker for actual expenses incurred in
connection with his recruitment, duly supported by official
receipts.
•
The parties to an overseas employment contract may stipulate
terms and conditions that are more beneficial to the worker than
the minimum.
•
It is a basic right of all workingmen to seek greater benefits not
only for themselves but for their families as well.
•
GR: the repatriation of land-based workers or seafarers and the
transport of their personal belongings shall be the primary
responsibility of the agency which recruited or deployed the
worker.
Exception: if due to the fault of the worker
•
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•
The joint and several liability imposed by law against recruitment
agencies and foreign employers is meant to assure the
aggrieved worker of immediate and sufficient payment of what is
due to him.
Exceptions:
a. When the workers were the ones who persuaded the
recruitment agency to send back abroad despite their
knowledge that the foreign employer might not be able to
pay their wages because of financial difficulties and they
agreed not to hold the agency responsible therefor.
b. When the workers were recruited by the supposed
recruitment agency without the latter’s consent.
Art. 27. Citizenship requirement. Only Filipino citizens or corporations,
partnerships or entities at least seventy-five percent (75%) of the
authorized and voting capital stock of which is owned and controlled by
Filipino citizens shall be permitted to participate in the recruitment and
placement of workers, locally or overseas.
•
Persons disqualified from engaging in overseas recruitment:
1. Travel and sales agencies of airline companies
2. Officers or members of the board or any corporation or
members of a partnership engaged in the business of a
travel agency
3. Corporations and partnerships, when any of its officers,
board members or partners is also an officer, board
member, or partner of a corporation engage in the business
of a travel agency.
4. Persons, partnerships or corporations which have
derogatory records
5. Any official or employee of the DOLE, POEA, OWWA, DFA
and other government agencies directly involved in the
implementation of RA 8042 and/or their relatives within the
th
4 civil degree of consanguinity or affinity; and
6. Persons, partners, officer, and directors of corporations
whose license has been previously revoked or cancelled for
violation of recruitment laws.
•
•
Foreigners cannot engage in recruitment and placement
The privilege to engage in recruitment and placement or
workers, whether for local or overseas employment, is available
only to Filipino citizens or to corporations, partnerships or
entities with at least 75% of the authorized and voting capital
stock owned and controlled by Filipino citizens.
Art. 28. Capitalization. All applicants for authority to hire or renewal of
license to recruit are required to have such substantial capitalization as
determined by the Secretary of Labor.
•
Recruitment agency for local employment:
8
200k in the case of single proprietorship
8
500k in the case of a corporation
•
Recruitment or manning agency for overseas employment:
8
2M for single proprietorship
8
5M for corporations
Art. 29. Non-transferability of license or authority. No license or
authority shall be used directly or indirectly by any person other than the
one in whose favor it was issued or at any place other than that stated in
the license or authority be transferred, conveyed or assigned to any
other person or entity. Any transfer of business address, appointment or
designation of any agent or representative including the establishment
of additional offices anywhere shall be subject to the prior approval of
the Department of Labor.
•
Limitations on the use of license or authority:
1. A license or authority cannot be used directly or indirectly
by any person other than the one in whose favor it was
issued
2. It cannot be issued in any place other than that specified in
the license or authority
3. It cannot be transferred, conveyed or assigned to any
person or authority
•
Effect of death of a sole proprietor
8
The license may be extended upon request of the heirs
only for the purpose of winding up its business, in order
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to prevent disruption of operations and so as not to
prejudice the interest of legitimate heirs
A private recruitment and placement agency for local
employment desiring to transfer ownership of the agency
should surrender its license to the issuing regional office of the
DOLE
3. Sworn or verified statement by the designating or
appointing person or company assuming full responsibility
for all acts of the agent or representative done in
connection with the recruitment and placement of workers
or seafarers.
•
•
Transfer or change of ownership of a single proprietorship
licensed to engage in overseas employment shall automatically
revoke the license.
•
A change in the relationship of the partners in a partnership
duly licensed to engage in overseas employment which
materially interrupts the course of the business or results in the
actual dissolution of the partnership, shall automatically cause
the revocation of the license.
•
Recruitment or manning agencies for overseas employment
organized as single proprietorship may convert into a
corporation for the purpose or upgrading their capabilities to
respond adequately to developments in the international labor
market and to enable them to better comply with their
responsibilities.
•
The approval of the merger, consolidation or upgrading shall
automatically revoke or cancel the license of the single
partnership.
•
Duly authorized representatives of a private recruitment and
placement agency for local employment can engage in
recruitment activities if their names are registered with the
regional office of the DOLE.
•
Every appointment of agents of a licensed recruitment or
manning agency for overseas employment shall be subject to
the approval or authority by the POEA. Said approval may be
obtained by submitting the ff documents:
1. Proposed appointment or SPA
2. Clearance of the proposed representative from the NBI and
the Anti-illegal recruitment branch of the POEA; and
Change of officers and personnel for overseas employment
shall be registered with the POEA 30 calendar days from the
date of such change.
Art. 30. Registration fees. The Secretary of Labor shall promulgate a
schedule of fees for the registration of all applicants for license or
authority.
•
•
Recruitment agency for local employment – 5k
Recruitment or manning agency for overseas employment – 50k
Art. 31. Bonds. All applicants for license or authority shall post such
cash and surety bonds as determined by the Secretary of Labor to
guarantee compliance with prescribed recruitment procedures, rules and
regulations, and terms and conditions of employment as may be
appropriate.
•
Purposes:
1. To secure all valid and legal claims arising from a violation
of the conditions of the grant and use of the license,
accreditation and contracts of employment.
2. Intended to guarantee compliance with the LC and its IRRs
relative to the recruitment and placement
•
Amount of bond for recruitment agency for local employment:
(prior to the approval of license)
a. Cash bond – 25k
b. Surety bond – 100k
The bonds and escrow shall answer for all the valid and legal
claims arising from violations of the conditions for the grant and
use of license and/or accreditation and contracts of
employment.
•
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•
•
The bonds and escrow shall likewise guarantee compliance with
the provisions of Philippine laws and all liabilities that the POEA
may impose.
Appeal bond:
a. Art. 223
8
a requirement for the perfection of an appeal.
8
Intended to insure the payment of monetary award in
the event that the judgment is affirmed on appeal
b. Art. 31
8
not limited to monetary awards by employees
8
Against which the POEA can go for violations by the
recruiter of the conditions for its license, the provisions
of the LC, the rules of the POEA as well as the
settlement of other liabilities the recruiter may incur.
8
Intended to answer only for employment-related claims
and for violations of labor laws. Therefore, it cannot be
garnished to satisfy a claim against a recruitment
agency that is not employment-related or does not
pertain to violation of labor laws.
A recruiter agency who appeals a judgment of the POEA or
Labor Arbiter to the NLRC is still obliged to post a bond in an
amount equivalent to the monetary award as required by Article
223 of the LC, notwithstanding the fact that it has already posted
a bond under Art. 31 of the LC.
Art. 32. Fees to be paid by workers. Any person applying with a
private fee-charging employment agency for employment assistance
shall not be charged any fee until he has obtained employment through
its efforts or has actually commenced employment. Such fee shall be
always covered with the appropriate receipt clearly showing the amount
paid. The Secretary of Labor shall promulgate a schedule of allowable
fees.
•
Placement fees
st
a. For local employment – not exceed 20% of the worker’s 1
month’s basic salary.
b. For overseas land-based employment – an amount
equivalent to 1 month salary, except where the prevailing
system in the country where the worker is to be deployed,
either by law, practice or policy, does not allow the charging
or collection of placement and recruitment fee.
•
Service fees
a. For local employment – charged against the employer which
shall not exceed 20% of the annual salary of the worker.
b. For overseas employment – charged against their principals
to cover services rendered in the recruitment,
documentation and placement of workers or seafarers. The
principal shall be responsible for the payment of the ff:
1. Visa fee
2. Airfare
3. POEA processing fee
4. OWWA membership fee
•
The power of the secretary of DOLE to order the suspension of
license carries with it the power to refund such fees as may
have been illegally collected.
Art. 33. Reports on employment status. Whenever the public interest
requires, the Secretary of Labor may direct all persons or entities within
the coverage of this Title to submit a report on the status of employment,
including job vacancies, details of job requisitions, separation from jobs,
wages, other terms and conditions and other employment data.
•
The authority given to the Sec of DOLE under this article can be
exercised only when public interest requires. This can be
justified as an exercise of police power.
Art. 34. Prohibited practices. It shall be unlawful for any individual,
entity, licensee, or holder of authority:
a. To charge or accept, directly or indirectly, any amount greater
than that specified in the schedule of allowable fees prescribed
by the Secretary of Labor, or to make a worker pay any amount
greater than that actually received by him as a loan or advance;
b. To furnish or publish any false notice or information or document
in relation to recruitment or employment;
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c.
d.
e.
f.
g.
h.
i.
j.
k.
l.
m.
n.
To give any false notice, testimony, information, document, or
commit any act of misrepresentation for the purpose of securing
a license or authority under this Code.
To induce or attempt to induce a worker already employed to
quit his employment in order to offer him to another unless the
transfer is designed to liberate the worker from oppressive terms
and conditions of employment;
To influence or to attempt to influence any person or entity not
to employ any worker who has not applied for employment
through his agency;
To engage in the recruitment or placement of workers in jobs
harmful to public health or morality or to the dignity of the
Republic of the Philippines;
To obstruct or attempt to obstruct inspection by the Secretary of
Labor or by his duly authorized representatives;
To fail to file reports on the status of employment, placement
vacancies, remittance of foreign exchange earnings, separation
from jobs, departures and such other matters or information as
may be required by the Secretary of Labor.
To substitute or alter employment contracts approved and
verified by the Department of Labor from the time of actual
signing thereof by the parties up to and including the periods of
expiration of the same without the approval of the Secretary of
Labor;
To become an officer or member of the Board of any corporation
engaged in travel agency or to be engaged directly or indirectly
in the management of a travel agency; and
To withhold or deny travel documents from applicant workers
before departure for monetary or financial considerations other
than those authorized under this Code and its implementing
rules and regulations.
Art. 34 is confined to persons engaged in recruitment and
placement of workers for local employment, the penalty of which
is provided in art. 39 of the LC.
Acts enumerated constitute illegal recruitment, regardless of
whether or not the offender is a licensee of holder of authority.
With regard to persons with regard to persons engaged in
recruitment of workers for overseas employment, the applicable
law is Sec. 6 of the Migrant Workers and Overseas Filipinos Act
of 1995.
o. The acts enumerated in Sec. 6 of the MWOFA of 1995
constitute illegal recruitment regardless of w/n the offender is a
licensee of holder of authority.
p. A mere attempt to induce a worker to quit his job through
offering him another one constitutes a violation of Art. 34.
q. If the purpose of the inducement is to liberate the worker from
oppressive terms and conditions of employment, he will not
incur liability.
r. The pari de licto doctrine shall not apply in cases of
overcharging allowable fees
s. Alteration of employment contracts without the approval of the
Secretary of DOLE or the POEA is prohibited under Article 43 (i)
of the LC.
The limitation is intended to insure that the employee is not placed in a
disadvantageous position
Art. 35. Suspension and/or cancellation of license or authority. The
Minister of Labor shall have the power to suspend or cancel any license
or authority to recruit employees for overseas employment for violation
of rules and regulations issued by the Ministry of Labor, the Overseas
Employment Development Board, or for violation of the provisions of this
and other applicable laws, General Orders and Letters of Instructions.
•
Grounds for suspension or cancellation of license:
1. Recruitment agency for local employment:
a. Violation of the conditions of license
b. Engaging in acts of misrepresentation for the
purpose of securing a license or the renewal
thereof.
c. Continuous operation despite due notice that
the license has expired
d. Incurring two suspensions based on final and
executory orders
e. Engaging in labor-only contracting as defined in
Art. 106 of the LC; etc.
2. Recruitment
agency
for
land-based
employment:
a. Deploying under-aged workers
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b. Deploying workers to principals not accredited
by the POEA
c. Falsifying or altering travel documents of
applicant worker in relation to overseas
recruitment activities
d. Withholding of worker’s salaries or remittances
without justifiable reasons or shortchanging of
remittances
e. Failure to comply with the undertaking to
provide Pre-Departure Orientation Seminar to
workers; etc
3. Manning agency for overseas seafarers:
a. Transfer or change of ownership of a single
proprietorship licensed to engage in overseas
employment
b. Falsifying or altering travel documents of
applicant seafarer in relation to recruitment
activities
c. Appointing
or
designating
agents,
representatives or employees without prior
approval from the POEA
d. Failure to deploy a seafarer within the
prescribed period without valid reason
e. Disregard of orders, notices, and other
processes issued by the POEA
•
•
•
•
Penalties imposed, as the case may be:
1. Reprimand
2. Suspension of license (2 mos to 6 mos)
3. Suspension of license (6mos and 1 day to 1 yr)
4. Cancellation of license
The penalty shall carry the accessory penalty of refund of the
fee charged or collected from the worker, in case of nondeployment.
In addition or in lieu of the penalty of suspension of license, the
POEA may impose the penalty of fine which shall be computed
at P10k for every month of suspension
A manning agency found guilty of committing an offense
regardless of the number or nature of charges, against 5 or
more complainants in a single case shall be imposed the
penalty of cancellation of license.
Chapter III
MISCELLANEOUS PROVISIONS
Art. 36. Regulatory power. The Secretary of Labor shall have the
power to restrict and regulate the recruitment and placement activities of
all agencies within the coverage of this Title and is hereby authorized to
issue orders and promulgate rules and regulations to carry out the
objectives and implement the provisions of this Title.
•
•
Purpose: to insure the protection of job-seekers from
unscrupulous recruiters.
Implicit in this power is the authority to award appropriate relief
to victims of offenses committed by recruitment agencies,
especially the refund or reimbursement of such fees as may
have been fraudulently or illegally collected, or such goods or
services imposed and accepted in excess of what is licitly
prescribed.
Art. 37. Visitorial Power. The Secretary of Labor or his duly authorized
representatives may, at any time, inspect the premises, books of
accounts and records of any person or entity covered by this Title,
require it to submit reports regularly on prescribed forms, and act on
violation of any provisions of this Title.
•
•
•
Usually conducted:
a. Before issuance of license
b. In case of transfer of office
c. Upon receipt of complaint for violation of existing RRs
Violation: appropriate sanction or denial of application for
renewal of license
Inspectors must present to the agency their Authority to Inspect
stating in detail the purpose and subject of inspection.
Art. 38. Illegal recruitment.
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a. Any recruitment activities, including the prohibited practices
enumerated under Article 34 of this Code, to be undertaken
by non-licensees or non-holders of authority, shall be deemed
illegal and punishable under Article 39 of this Code. The
Department of Labor and Employment or any law
enforcement officer may initiate complaints under this Article.
•
It is enough that the recruiter gives the impression of his ability
to enlist workers for job placement abroad.
•
There is illegal recruitment:
a. When a person who is not a holder of license or authority
engages in recruitment activities
b. When a person, w/n a holder of a license or authority,
commits any of the prohibited practices enumerated in
Article 34 of the LC or those enumerated in Section 6 of the
Migrant Workers Act of 1995, in case of overseas
employment.
Illegal recruitment is deemed committed by a syndicate if
carried out by a group of three (3) or more persons conspiring
and/or confederating with one another in carrying out any
unlawful or illegal transaction, enterprise or scheme defined
under the first paragraph hereof. Illegal recruitment is deemed
committed in large scale if committed against three (3) or
more persons individually or as a group.
•
Qualified illegal recruitment:
a. If its committed by a syndicate, i.e., carried out by a group of
3 or more persons conspiring or confederating with one
another in carrying out any illegal or unlawful recruitment
activity; or
b. If it is committed by a large scale, i.e., if committed against 3
or more persons, individually or as a group.
c. The Secretary of Labor and Employment or his duly authorized
representatives shall have the power to cause the arrest and
detention of such non-licensee or non-holder of authority if
after investigation it is determined that his activities constitute
a danger to national security and public order or will lead to
further exploitation of job-seekers. The Secretary shall order
the search of the office or premises and seizure of
documents, paraphernalia, properties and other implements
used in illegal recruitment activities and the closure of
companies, establishments and entities found to be engaged
in the recruitment of workers for overseas employment,
without having been licensed or authorized to do so.
(Declared unconstitutional in Salazar v. Achacoso)
•
Illegal recruitment, if committed by a syndicate or in a large
scale, is considered an offense involving economic sabotage,
hence, a higher penalty is imposed.
•
A person who violates Art. 13 (b) and Art. 34 of the LC can be
charged and convicted separately of illegal recruitment and
estafa because the former is malum probihitum where criminal
intent is not necessary for conviction and the latter is malum in
se where criminal intent of the accused is necessary for
conviction.
•
Prescription of action:
a. Art. 290 of the LC (local employment)- 3 yrs
b. Migrant – 5 yrs, except those involving economic sabotage
which prescribe in 20 yrs
•
The SC, in declaring Art. 38 (c) unconstitutional, held that under
Section 2, Art III of the 1987 Constitution, only judges, and no
other, can issue warrants of arrest and search. Not being a
judge, the Secretary of DOLE cannot issue search warrants or
warrants of arrest.
b. Illegal recruitment when committed by a syndicate or in large
scale shall be considered an offense involving economic
sabotage and shall be penalized in accordance with Article 39
hereof.
•
Recruitment activities – refer to any act of canvassing,
enlisting, contracting, transporting, utilizing, hiring or procuring
workers. It includes referrals, contract services, promising or
advertising for employment, locally or abroad, whether for profit
or not.
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persons, the officers having control, management or direction of
the business shall be liable.
Title II
EMPLOYMENT OF NON-RESIDENT ALIENS
Art. 39. Penalties.
a. The penalty of life imprisonment and a fine of One Hundred
Thousand Pesos (P1,000,000.00) shall be imposed if illegal
recruitment constitutes economic sabotage as defined herein;
b. Any licensee or holder of authority found violating or causing
another to violate any provision of this Title or its
implementing rules and regulations shall, upon conviction
thereof, suffer the penalty of imprisonment of not less than
two years nor more than five years or a fine of not less than
P10,000 nor more than P50,000, or both such imprisonment
and fine, at the discretion of the court;
c. Any person who is neither a licensee nor a holder of authority
under this Title found violating any provision thereof or its
implementing rules and regulations shall, upon conviction
thereof, suffer the penalty of imprisonment of not less than
four years nor more than eight years or a fine of not less than
P20,000 nor more than P100,000 or both such imprisonment
and fine, at the discretion of the court;
d. If the offender is a corporation, partnership, association or
entity, the penalty shall be imposed upon the officer or officers
of the corporation, partnership, association or entity
responsible for violation; and if such officer is an alien, he
shall, in addition to the penalties herein prescribed, be
deported without further proceedings;
e. In every case, conviction shall cause and carry the automatic
revocation of the license or authority and all the permits and
privileges granted to such person or entity under this Title,
and the forfeiture of the cash and surety bonds in favor of the
Overseas Employment Development Board or the National
Seamen Board, as the case may be, both of which are
authorized to use the same exclusively to promote their
objectives.
•
The persons criminally liable for illegal recruitment are the
principals, accomplices and accessories. In case of juridical
Art. 40. Employment permit of non-resident aliens. Any alien seeking
admission to the Philippines for employment purposes and any domestic
or foreign employer who desires to engage an alien for employment in
the Philippines shall obtain an employment permit from the Department
of Labor.
The employment permit may be issued to a non-resident alien or to the
applicant employer after a determination of the non-availability of a
person in the Philippines who is competent, able and willing at the time
of application to perform the services for which the alien is desired.
For an enterprise registered in preferred areas of investments, said
employment permit may be issued upon recommendation of the
government agency charged with the supervision of said registered
enterprise.
•
Purpose: intended to regulate the employment on non-residents
so as not to displace Filipinos from jobs that they are capable of
doing.
•
All non-resident nationals who intend to engage in gainful
employment in the Philippines are required to obtain an Alien
Employment Permit.
•
Persons exempted from securing said permit:
1. Members of the diplomatic services and foreign government
officials accredited by the Philippine government;
2. Officers and staff of international organizations of which the
Philippine government is cooperating member, and their
legitimate spouses desiring to work in the Philippines;
3. Foreign nationals elected as members of the Governing Board
who do not occupy any other position, but have only voting
rights in the corporation
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4. All foreign nationals granted exemption by special laws and all
other laws that may be promulgated by the Congress;
5. Owners and representatives of foreign principals, whose
companies are accredited by the Philippine Overseas
Employment Administration (POEA), who come to the
Philippines for a limited period solely for the purpose of
interviewing Filipino applicants for employment abroad;
6. Foreign nationals who come to the Philippines to teach, present
and/or conduct research studies in universities and colleges as
visiting, exchange or adjunct professors under formal
agreements between the universities or colleges in the
Philippines and foreign universities or colleges; or between the
Philippine government and foreign government; provided that
exemption is on a reciprocal basis.
7. Resident foreign nationals.
•
•
•
•
•
•
A foreign national who intends to engage in gainful employment
in the Philippines should file an application for Alien
Employment Permit (AEP) with the Regional Office of the DOLE
having jurisdiction over the intended place of work.
An application for renewal of such permit shall be filed on or
before its expiration. Application of foreign nationals with expired
AEP shall be considered as new application.
The AEP shall be valid for a period of 1 yr, unless the
employment contract, consultancy services, or other modes of
engagement provides otherwise, which in no case shall exceed
5 yrs.
Grounds for suspension of AEP:
1. The continued stay of the foreign national may result in
damage to the interest of the industry or the country.
2. The employment of the foreign national is suspended by
the employer or by order of the court.
Petition for suspension of AEP shall be resolved within 30
calendar days from receipt thereof.
Cancellation of AEP:
1. Non-compliance with any of the requirements of
conditions of the AEP
•
•
2. Misrepresentation of the facts in the application
3. Submission of falsified or tampered documents
4. Meritorious objection or information against the
employment of the foreign national as determined by
the regional director
5. Foreign national has a derogatory record; and
6. Employer terminated the employment of the foreign
national.
Petition for cancellation of AEP shall be resolved within 30
calendar days from receipt thereof.
Remedies in case of suspension, cancellation or revocation of
AEP:
a. The aggrieved party may file a motion for recon and/or
appeal within 7 calendar days after receipt of the
suspension/cancellation/revocation order, with the regional
director who shall resolve the same within 10 calendar days
from receipt thereof.
If the motion for recon is filed after the period of 7
calendar days but not later than 10 calendar days from
receipt of denial, it shall be treated as an appeal
b. Such order may also be appealed to the Sec of DOLE, in
which case, it should be filed within 10 calendar days from
its receipt. Decision rendered shall be final and
unappealable.
•
Foreign nationals found working without, or with an expired AEP
may be fined 10k for every year of fraction thereof
•
Permanent resident aliens who are employed in the Philippines
are obliged to secure an Alien Employment Registration
Certificate (AERC). The AERC may be obtained by filing with
the regional office of DOLE an application with the necessary
supporting documents.
Art. 41. Prohibition against transfer of employment.
a. After the issuance of an employment permit, the alien shall
not transfer to another job or change his employer without
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prior
approval
of
the
Secretary
of
Labor.
b. Any non-resident alien who shall take up employment in
violation of the provision of this Title and its implementing
rules and regulations shall be punished in accordance with
the provisions of Articles 289 and 290 of the Labor Code.
In addition, the alien worker shall be subject to deportation
after service of his sentence.
•
Sanctions for Violation:
a. Cancellation of AEP
b. Fine of not less than 1k nor more than 10k, or
imprisonment of not less than 3 mos nor more than 3
yrs or both such fine and imprisonment at the discretion
of the court, as provided in Art. 288 of the LC.
Art. 42. Submission of list. Any employer employing non-resident
foreign nationals on the effective date of this Code shall submit a list of
such nationals to the Secretary of Labor within thirty (30) days after such
date indicating their names, citizenship, foreign and local addresses,
nature of employment and status of stay in the country. The Secretary of
Labor shall then determine if they are entitled to an employment permit.
•
The list will enable the secretary of DOLE to determine if the
foreign nationals listed are still entitled to an AEP.
ART 43-56 – SUPERSEDED BY R.A NO. 7796 OTHERWISE KNOWN
AS THE TECHNICAL EDUCATION AND SKILLS DEVELOPMENT
ACT OF 1994
TECHNICAL EDUCATION AND SKILLS DEVELOPMENT
• TESDA Act aims to promote and strengthen the quality of
ethical education and skills development programs in order to
attain international competitiveness and meet the changing
demands for quality middle-level manpower.
• In pursuance of the declared policy of the state to provide
relevant, accessible, high quality and efficient technical
education and skills development in order to build up high
quality Filipino middle-level manpower responsive to the
Philippine development goals and priorities.
TECHNICAL EDUCATION – refers to the education process designed
at post-secondary and lower tertiary level officially recognized as nondegree programs aimed at preparing technicians, para-professionals
and other categories of middle-level workers by providing them with a
broad range of general education, theoretical, scientific and
technological studies, and related job skills training.
SKILLS DEVELOPMENT – is the process through which learners and
workers are systematically provided with learning opportunities to
acquire or upgrade, or both, their ability, knowledge and behavior
pattern required as qualifications for a job or range of jobs in a given
occupational area.
COMPOSITION OF TESDA BOARD
1. Secretary of Labor and Employment – Chairperson
2. Secretary of Education – Co-chairperson
3. Secretary of trade and Industry – Co- Chairperson
4. Secretary of Agriculture – Member
5. Secretary of Interior and Local Government - Member
6. Director-General of the TESDA secretariat – Member
7. 2 representatives, from the employer/industry organization, one
of whom shall be a woman
8. 3 representatives from the labor sector, one of whom shall be a
woman
TESDA ACT OF 1994 ( R.A NO. 7796)
DECLARATION OF POLICY
• To provide relevant, accessible, high quality and efficient
technical education and skills development in support of the
development of high quality Filipino middle-level manpower
responsive to and in accordance with Philippine development
goals and priorities.
• The state shall encourage active participation of various
concerned sectors, particularly private enterprises being direct
participants in and immediate beneficiaries of a trained and
skilled workforce, in providing technical education and skills
development opportunities.
GOALS AND OBJECTIVES
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To promote and strengthen the quality of technical education
and skills development programs to attain international
competitiveness.
• Focus technical education and skills development on meeting
the changing demands for quality middle-level manpower.
• Encourage critical and creative thinking by disseminating the
scientific and technical knowledge base of middle-level
manpower development programs
• Recognize and encourage the complimentary roles of public and
private
institutions in technical education and skills
development and training systems.
• Inculcate desirable values through the development of moral
character with emphasis on the work ethic, self-discipline, selfreliance and nationalism.
SKILL – The acquired and practiced ability to carry out a task or job
SKILLS DEVELOPMENT – the process through which learners and
workers are systematically provided with learning opportunities to
acquire or upgrade, or both, their ability, knowledge and behavior
pattern required as qualifications for a job or range of jobs in a given
occupational area.
TECHNICAL EDUCATION – the education process designed at
post-secondary and lower tertiary levels, officially recognized as
non-degree programs aimed at preparing technicians, paraprofessionals and other categories of middle-level workers by
providing them with a broad range of general education, theoretical
studies, and related job skills training.
TRADE – any group of interrelated jobs or any occupation which is
traditionally or officially recognized as craft or artisan in nature
requiring specific qualifications that can be acquired through work
and/or training.
MIDDLE-LEVEL MANPOWER – refers to those:
1. Who have acquired practical skills and knowledge through
formal or non-formal education and training equivalent to at
least a secondary education and training equivalent to at
least a secondary education but preferably a postsecondary education with a corresponding degree or
diploma
2. Skilled workers who have become highly competent in their
trade or craft as attested by industry
PRIVATE ENTERPRISES – an economic system under which
property of all kinds can be privately owned and in which individuals,
•
alone or in association with another, can embark on a business
activity. This includes industrial, agricultural, or agro-industrial
establishments engaged in the production, manufacturing,
processing, repacking or assembly of goods including serviceoriented enterprises.
TRAINERS – persons who direct the practice of skills towards
immediate improvement in some task
TRAINORS/TRAINERS – persons who provide training to trainers
aimed at developing the latter’s behavior patterns required for
specific jobs, tasks, occupations or group of related occupations.
TRAINEES – Persons who are participants in a vocational,
administrative or technical training program for the purpose of
acquiring and developing job-related skills
APPRENTICESHIP – training within employment with compulsory
related theoretical instructions involving a contract between an
apprentice and an employer on an approved apprenticeable
occupation.
APPRENTICE – a person undergoing training for an approved
apprenticeable occupation during an established period assured by
an apprenticeship agreement.
APPRENTICESHIP AGREEMENT – a contract wherein a
prospective employer binds himself to train the apprentice who in
turn accepts
TITLE II
TRAINING AND EMPLOYMENT OF SPECIAL WORKERS
APPRENTICES
ART. 57 STATEMENT OF OBJECTIVES
1. To help meet the demand of the economy for trained
manpower
2. To establish a national apprenticeship program through the
participation of employers, workers and government and
non-government agencies
3. To establish apprenticeship standards for the protection of
apprentices
SALIENT FEATURES OF THE APPRENTICESHIP LAW
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1. It liberalizes the application of training principles to facilitate the
use of the training method for development of manpower in
many other occupations aside from the skilled trades.
2. It lowers the minimum qualifying age for apprenticeship to 14
instead of 16 as prescribed in the old law
3. It eliminates the unrealistic requirement that a prospective
apprentice should be a high school graduate
4. Unlike the old law which required that training should be
undertaken in the premises of the employer alone, the Labor
Code gives an employer the option to conduct the training in its
premises, in a Department of Labor and Employment training
center or other public training institution, or a combination of
both
5. Associations and civic groups are now allowed to organize or
sponsor apprenticeship programs
6. The limitation imposed by P.D. No. 173 on the number of
apprentices whose compulsory employment and training may
be required during the emergency situations has been
eliminated.
ART. 58 DEFINITION OF TERMS
“Apprenticeship” means practical training within employment
with compulsory related theoretical instructions involving a
contract between an apprentice and an employer on an
approved apprenticeable occupation.
“Apprentice” is a worker who is covered by a written
apprenticeship agreement with an individual employer or any
of the entities recognized under this chapter.
An “apprenticaeble occupation” means any trade, form of
employment or occupation which requires more than three (3)
months of practical training on the job supplemented by related
theoretical instruction
“Apprenticeship agreement” is an employment contract
wherein the employer binds himself to train the apprentice who
in turn accepts the terms of the training
ART. 59 – QUALIFICATIONS OF APPRENTICE
a) Be at least (14) years of age.
b) Possess vocational aptitude and capacity for appropriate
tests
c) Possess the ability to comprehend and follow oral and
written instructions
Trade and industry associations may recommend to the
Secretary of Labor appropriate educational requirements
for different occupations
EDUCATIONAL QUALIFICATION
• It is no longer required that the applicant for apprenticeship
should be a high schoolgraduate.
• All that it needed is possession of the ability to comprehend and
follow oral and written instructions.
• Some occupations may require a certain degree of education
• Trade and industry associations may recommend to the
Secretary of Labor and Employment the appropriate educational
qualification.
• If approved, such qualifications shall become the educational
requirement for such particular occupation.
• The employer can waive the said educational qualification in
favor of an applicant who demonstrates exceptional ability. In
such a situation, a certification explaining briefly the ground for
such waiver signed by the person in charge of the program shall
be attached to the apprenticeship agreement.
PHYSICAL FITNESS
• the applicant for apprenticeship should be physically fit for the
occupation in which he desires to be trained.
• Physical defect should not be a hindrance except when it
impedes the effective performance of the apprentice.
PHYSICAL EXAMINATION
• Physical examination of applicants for apprenticeship is free of
charge at the Department of Health or any government hospital.
• All entities with an apprenticeship program may elect to assume
the responsibility for physical examination provided its facilities
are adequate and all expenses are borne exclusively by it.
PREVIOUS TRAINING
• A prospective apprentice who has completed or attended a
vocational course in a duly recognized trade or vocational
school or training center who has had previous experience in
the trade or occupation in which he decides to apprenticed shall
be given due credit.
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•
•
Both practical and theoretical knowledge shall be evaluated and
the credit shall appear in the apprenticeship agreement.
Such credit shall be expressed in terms of hours.
ART. 60 EMPLOYMENT OF APPRENTICES
Only employers in the highly technical industries may
employ apprentices and only in apprenticeable occupations
approved by the Minister of Labor and Employment.
REQUISITES:
a) The employer should be engaged in a business that is
considered a highly technical industry.
b) The job to which the apprentice will work on should be classified
as an apprenticeable occupation.
Article 66. Appeal to the Secretary of Labor
-the decision of the authorized agency of the Dept. of Labor may be
appealed to the Secretary of Labor within 5days from receipt of decision
-The decision of the Secretary of Labor is final and executory
-However, the aggrieved party can still elevate the matter to the
appropriate court through a special civil action for certiorari
ARTICLE 67. Exhaustion of Administrative Rules—
-controversies and disputes arising out of apprenticeship agreement
should be first threshed out with the plant apprenticeship committee
before filing an action
ARTICLE 68. Aptitude Testing Applicants—
-to qualify for apprenticeship, one should possess vocational aptitude
tests
ARTICLE 69. Responsibility for Theoretical Instruction—
-ratio: 100hours of instructions for every 2,000hours of practical or OJT
ARTICLE 70. Organization of Apprenticeship Program; Exemptions
-General Rule: the organization of apprenticeship program shall be
primarily a voluntary undertaking of employers
-Exceptions:
(a) when there is a critical shortage of trained manpower in
certain trades, occupations, jobs, or employment levels and national
security or particular requirements of economic development so
demands
(b) where foreign technicians are utilized by private companies
in apprenticeship trades
ARTICLE 71. Deductibility of Training Costs—
-1/2 deduction for taxable income of the value of labor training expenses
-Purpose: to encourage the organization of apprenticeship programs
and induce an employer to pay the minimum wage
-Requisites of availment:
(a) should be recognized by the Department of Labor and
Employment
(b) apprentices should be paid minimum wage
(c) the deduction should not exceed 10% of direct labor wage
(d) should be operational during the taxable year as certified by
the Apprenticeship Division.
ARTICLE 72. Apprenticeship Without compensation—
(a)
those who undergo apprenticeship for the purposes of
complying with academic requirements for graduation
(b)
those who undergo apprenticeship for the purposes of
complying with government requirements for board
examinations
ARTICLE 73. Learners Defined—
-those who are hired as trainees in semi-skilled and other industrial
occupations which are non-apprenticeable and which may be learned
through practical training on-the-job
-must not exceed 3 months
-employer must have Leadership Program duly approved by TESDA
-need not be supplemented by theoretical instructions
ARTICLE 74. When Learners May Be hired—
-Conditions:
(a) the job is semi-skilled and non-apprenticeable and can be
learned in a practical way within a period of not more than 3 months
(b) there are no available experienced workers
(c) the employment of learners is necessary to prevent
curtailment of employment opportunities
(d) their employment does not create unfair competition in terms
of labor costs or impair working standards
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-Age Requirement:
- below 15 cannot be employed as a learner
- below 18 can be employed only in non-hazardous, safe
occupations
ARTICLE 75. Leadership Agreement—
(a)
names and addresses of the learners
(b)
duration of the learnership period which shall not
exceed 3months
(c)
wage salary rate is mot less than 75% of the minimum
wage
(d)
to employ learners as regular employees if they so
desire upon completion of learnership
-if he training is terminated after the first 2 months, before the stipulated
period through no fault of the learner, the learner shall be deemed a
regular employee
-Learnership agreement- contract between the learner and the
employee
-must be in writing
-signed by the learner
-signed by the employee or his duly authorized representative
-if a learner is a minor, should bear the conformity of his parent
or guardian
ARTICLE 76. Learners in Piecework—
-Learners in piecework or incentive-rate jobs shall be paid in full for the
work done, and not 75% of the applicable minimum wage
ARTICLE 77. Penalty Clause—
-criminal liability punishable under ART. 288 of the Labor Code
Title I: Working Conditions and Rest periods
Chapter I: Hours of Work
Art. 82. Coverage. The provisions of this Title shall apply to employees
in all establishments and undertakings whether for profit or not, but not
to government employees, managerial employees, field personnel,
members of the family of the employer who are dependent on him for
support, domestic helpers, persons in the personal service of another,
and workers who are paid by results as determined by the Secretary of
Labor in appropriate regulations.
As used herein, "managerial employees" refer to those whose primary
duty consists of the management of the establishment in which they are
employed or of a department or subdivision thereof, and to other officers
or members of the managerial staff.
"Field personnel" shall refer to non-agricultural employees who regularly
perform their duties away from the principal place of business or branch
office of the employer and whose actual hours of work in the field cannot
be determined with reasonable certainty.
• Applies to ALL EMPLOYEES, whether for profit or not, except:
o Government Employees
o Managerial Employees
o Officer and members of the managerial staff
o Field Personnel
o Members of the family of the employer who are dependent on
him for support
o Domestic Helpers
o Persons in the personal service of another
o Workers who are paid by results
1. Government Employees
a. Refer to those employed by the National Government or any of
its political subdivisions; including those employed in GOCCs
with SPECIAL CHARTERS, not under the Corporation Law
b. They are not covered by the Labor Code, but by the Civil
Service Law or the Administrative Code, among other special
laws
2. Managerial Employees – must meet ALL THE FOLLOWING
conditions to be considered:
a. Primary duty consists in the management of the establishment
or in the management of a department or subdivision thereof;
b. He directs the work of TWO OR MORE employees therein;
c. Has authority to hire or fire other employees of lower rank, or
his recommendations as to hiring, firing, promoting and other
personnel movements are given weight.
3. Officers or members of the managerial Staff
a. Must perform the following duties and responsibilities to be
considered such:
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i.
Primary duty consist in the performance of work directly
related to management policies of their employer;
ii. Exercise discretion and independent judgment;
iii. Assisting a proprietor or a managerial employee whose
primary duty consists in the management of the
establishment or in the management of a department or
subdivision thereof; or they execute UNDER GENERAL
SUPERVISION, work along specialized or technical lines
requiring special training, experience or knowledge; or they
execute under general supervision special assignments
and tasks; and
iv. Do not devote more than 20% of their hours worked in a
workweek to activities directly and closely related to the
performance of the work described above. (in other words,
they don’t perform work reserved for managerial
employees more than 20% of the time)
b. Supervisory employees are so exempted, if they perform
functions that qualify them as members or officers of a
managerial staff, like Construction/Project engineer and Chief
Patron of a vessel.
4. Field Personnel
a. Are exempted from coverage, if:
i. They regularly perform their duties away from the principal
place of business of the employer;
ii. Their actual hours of work cannot be determined with
reasonable certainty
1. How to determine: Whether or not employee’s time
and performance is constantly supervised by the
employer. Exemption does not apply if constantly so
supervised.
b. Fishermen ARE NOT field personnel – they are under effective
control and supervision of the employer through the vessel’s
patron or master.
5. Members of the family of the employer who are dependent on
him for support
a. Refer to: Husband and wife, parents and children, other
ascendants and descendants, brothers and sisters, whether full
or half-blood.
6. Domestic Helpers
a. Any person whether male or female, who renders service in
and about the employer’s home on an activity which are usually
necessary or desirable for the maintenance and enjoyment of
the employer’s family.
b. Family drivers, cooks, gardeners or nursemaid.
7. Persons in the personal service of another
a. Are those who minister to the personal comfort, convenience or
safety of the employer as well as the members of the
employer’s household.
b. Personal bodyguards, private nurses
8. Workers paid by results
a. Those who are paid on piecework, takay, pakiao or task basis.
Art. 83. Normal hours of work. The normal hours of work of any
employee shall not exceed eight (8) hours a day.
Health personnel in cities and municipalities with a population of at least
one million (1,000,000) or in hospitals and clinics with a bed capacity of
at least one hundred (100) shall hold regular office hours for eight (8)
hours a day, for five (5) days a week, exclusive of time for meals, except
where the exigencies of the service require that such personnel work for
six (6) days or forty-eight (48) hours, in which case, they shall be entitled
to an additional compensation of at least thirty percent (30%) of their
regular wage for work on the sixth day. For purposes of this Article,
"health personnel" shall include resident physicians, nurses, nutritionists,
dietitians, pharmacists, social workers, laboratory technicians,
paramedical technicians, psychologists, midwives, attendants and all
other hospital or clinic personnel.
1. Normal Hours of Work
a. Sets the maximum hours for work under NORMAL
CONDITIONS. Employer is free to adopt less than this
prescribed maximum.
b. 8 hours is maximum, which may be staggered so long as it falls
within a 24-hour period. Work in excess of this maximum
becomes OVERTIME WORK.
2. When May An Employee be Compelled to Render Overtime
Work?
a. Only under these following emergency situations:
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i.
ii.
iii.
iv.
v.
When the country is at war or when any other local or
national emergency has been declared;
When overtime work is necessary to prevent loss of life or
property or in case of imminent danger to public safety
due to an actual or impending emergency in the locality
caused by serious accidents, fire, flood, typhoon,
earthquake, epidemic or other disaster or some other
cause of similar nature;
When there is urgent work to be performed on machines,
installations or equipment, in order to avoid serious loss or
damage to the employer or some other cause of similar
nature;
When overtime work is necessary to prevent loss or
damage to perishable goods; and
Where the completion or continuation of the work started
th
before the 8 hour is necessary to prevent serious
obstruction or prejudice to the business or operations of
the employer.
3. Compressed Workweek
a. Resorted to by the employer to prevent serious losses due to
cause beyond his control. To be an exception to the 8-hour-aday requirement, the workers must AGREE to the temporary
change of work schedule and they do not suffer any loss of
overtime pay, fringe benefits or their weekly or monthly takehome pay.
b. An alternative arrangement where the regular workweek is
reduced to less than 6 days but the total number of normal
hours per week remains at 48 hours.
c. Conditions of a VALID CWW Scheme:
i.
It is expressly and voluntarily supported by majority of the
employees affected;
ii.
If work is hazardous, a certification is needed from an
accredited safety organization or the firm’s safety
committee that work beyond 8 hours is within the limits or
levels of exposure set by DOLE’s occupational safety and
health standards
iii.
The DOLE is duly notified.
(a) all time during which an employee is required to be on duty or to be
at a prescribed workplace; and
(b) all time during which an employee is suffered or permitted to work.
Rest periods of short duration during working hours shall be counted as
hours worked.
1. Principles in Determining Hours Worked
a. All Hours which the employee is required to give his employer
hours worked, regardless of whether or not such hours are
spent in productive labor or involve physical or mental exertion.
i.
Engaged to WAIT – the time spent by an employee
waiting is considered HOURS WORKED if he was
engaged to wait or waiting is an integral part of his work.
Example: Company driver playing chess while waiting for
his boss.
ii.
Waiting to be ENGAGED – Not considered working since
his is not yet controlled by the employer because
employee is yet to be engaged. Employee can still use
time waiting for his personal purposes.
iii.
On CALL TIME – An employee who is required to remain
on call in the employer’s premises or so close thereto that
he cannot use the time for his own purpose is considered
as working while on call. An employee NOT REQUIRED
TO LEAVE WORD ON WHERE HE MAY BE REACHED is
not working while on call.
iv.
ASSEMBLY TIME – A requirement by some employers
for their employees to assemble at an area prior to the
start of their work. Upon consideration of this as HOURS
WORKED, it shall depend on whether or not the worker is
subject to the control of the employer during the entire
period. IF workers are NOT SUBJECT TO EMPLOYER’S
CONTROL during the period, said assembly period is
NOT CONSIDERED HOURS WORKED.
v.
TRAVEL TIME – General Rule: NOT CONSIDERED
HOURS WORKED. However, if the employer requires the
employee to deviate from his normal home-to-work/workto-home travel, as for instance, when an employee is
asked to deliver or pick-up a message from a customer,
the time spent for such travel is considered as hours
worked.
Art. 84. Hours worked. Hours worked shall include
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vi.
vii.
ATTENDANCE AT LECTURES, MEETINGS, TRAINING
PROGRAMS – Not considered as hours worked if ALL OF
THE FOLLOWING conditions are present:
1. Attendance is voluntary;
2. Attendance is outside of the employee’s regular
working hours; and
3. The employee does not perform any productive work
during such attendance.
SEMESTRAL BREAK – CONSIDERED HOURS
WORKED if teacher cannot use the break gainfully and
effectively for their own interest.
b. If the work performed was necessary or it benefitted the
employer, or the employee could not abandon his work at the
end of his normal working hours because he had no
replacement, all time spent for such work shall be considered
as hours worked, if the work was done with the knowledge of
his employer or immediate supervisor.
c.
The time during which an employee is inactive by reason of
interruptions in his work beyond control shall be considered as
hours worked if the imminence of the resumption of work
requires the employee’s presence at the place of work or if the
interval is too brief to be utilized effectively and gainfully in the
employee’s own interest.
POWER INTERRUPTION
 Not exceeding twenty (20) minutes = hours worked
 Reason - imminence of the resumption of work requires the
employee's presence at the place of work and the time is too
short for the employees to utilize it effectively and gainfully for
his own interest
 Exceeding Twenty (20) minutes not hours worked if:
a. Employees can leave their workplace or go elsewhere
within or without the work premises;
b. Employees can use the time effectively for their own
interest
 In either case, the employer can extend the working hours
beyond the regular schedule to compensate the loss of
productive man-hours without being liable for overtime pay



Five (5) to twenty (20) minutes = hours worked
o Reason - time spent is too short for the employee to
utilize it effectively and gainfully for his own purposes
More than twenty (20) minutes = not hours worked
o Especially if employee is completely relieved of his
duties such that he can rest completely
An employee need not leave the premises of the workplace in
order that his rest period shall not be counted as hours worked
3. Applicability to Seamen
 No need to set up for seamen a criterion different from that
applied to laborers on land, for the only thing that needs to be
done is to determine the meaning of the term 'working place.'
Thus, a laborer need not leave the premises of the factory, shop
or boat in order that his rest period shall not be counted, it being
enough that he 'cease to work', may rest completely and leave
or may leave at will the spot where he actually stays while
working, to go somewhere else, whether within or outside the
premises of the said factory, shop or boat. (Luzon Stevedoring
Co. Inc. vs. Luzon Marine Department Union)
 Criterion for determining whether or not seamen are entitled to
overtime compensation
o Whether they actually rendered service in excess of
eight (8) hours a day
4. Applicability to Health Personnel
 Principles also applicable to health personnel
Art. 85. Meal periods. Subject to such regulations as the Secretary of
Labor may prescribe, it shall be the duty of every employer to give his
employees not less than sixty (60) minutes time-off for their regular
meals.
1. Duration of Meal Period
 General rule – at least 1 hour time-off for regular meals
 Cases where meal period may be at least 20 minute:
a. Work is non-manual in nature or does not involve strenuous
physical exertion
b. Establishment regularly operates not less than 16 hours a
day
2. Rest Period
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c.
Where actual or impending emergencies or there is urgent
work to be performed on machineries, equipment or
installation to avoid serious loss which the employer would
otherwise suffer
d. Work is necessary to prevent serious loss of perishable
goods
Waiver of overtime pay
 General rule – right to overtime pay as a result of a
‘compensable shorter meal period’ under existing laws
 Conditions for exception:
a. Employees voluntarily agree in writing to a shortened meal
period and willing to waive the overtime pay
b. No diminution in the salary and other fringe benefits
c. Work of the employees does not involve strenuous physical
exertion and they are provided with adequate coffee breaks
in the morning and afternoon
d. The value of the benefits derived by the employees for the
proposed work arrangement is equal to or commensurate
with the compensation due them
e. Overtime pay will become due and demandable if they are
permitted or made to work beyond 4:30 pm
f. Effectivity shall be of temporary duration as determined by
the Secretary of Labor and Employment
2. Compensability of Meal Period
 20 minutes – compensable; part of working time
 1 hour or more – not part of working time
o Except if employee is not completely relieved of his
duties during the 1-hour period
PANAM vs. Pan American Employees Association (1 SCRA 527)
Facts: During the 1-hour meal period the mechanics were required to
stand by for emergency work. If they happened not to be available when
called, they were reprimanded by the leadman.
ISSUE: Should the one-hour meal period be considered as hours
worked?
HELD: Yes, it must be considered as hours worked and compensable.
RATIO: The mechanics could not rest completely as they had to be
ready on call
3. Coffee Break
 5 – 20 minutes – compensable working time
Art. 86. Night shift differential. Every employee shall be paid a night
shift differential of not less than ten percent (10%) of his regular wage
for each hour of work performed between ten o’clock in the evening and
six o’clock in the morning.
1. Night Shift Differential
 Premium given to an employee for working between 10:00 pm
and 6:00 am
2. Reason for the Law
 Hygienic, medical, moral, cultural and socio-biologic reasons are
in accord that night work has many inconveniences and when
there is no alternative but to perform it
3. Distinction Between Overtime Pay and Night Shift Differential
 Night shift differential - additional compensation given to an
employee for working between the hours of 10:00 pm and 6:00
am
 Overtime pay – extra compensation given to an employee for
working excess of 8 hours in a day
4. Employees Not Entitled to Night Shift Differential
a. Government employees including those employed in
government-owned or controlled corporations with special
charters
b. Managerial employees
c. Officers and members of a managerial staff
d. Field personnel and other employees whose time and
performance is unsupervised by the employer
e. Employees of retail and service establishment regularly
employing not more than 5 workers
f. Domestic helpers
g. Persons in the personal service of another
h. Workers who are engaged on task or contract basis, or those
paid a fixed amount for performing work irrespective of the time
consumed in the performance thereof
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5. Waiver of Night Shift Differential
 Founded on public policy, thus, cannot be waived
 Claim for unpaid night shift differential – can be compromised
o Allowed by Art. 227 of the Labor Code
o Not contrary to public policy because what is
compromised is the claim for unpaid (past) night shift
differential, not the right to night shift differential
o The compromise does not relieve the employer from
paying future night shift differential
6. Night Shift Differential Rate
 Minimum – 10% of the regular wage of each hour of work
rendered between 10:00 pm and 6:00 am
ORDINARY DAY
 10% of the regular wage of each hour of work rendered between
10:00 pm and 6:00 am
 Illustration:
An employee with a daily wage of P145.00 who works from
10:00 pm to 6:00 am on an ordinary day will receive total pay of
P159, computed as follows:
Night Shift Differential Rate
P145.00 x 0.10 = P14.50
Total Pay
P145.00 + P14.50 = P159.50
*0.10 = 10%
REST DAY OR SPECIAL DAY
 Regular wage PLUS at least 30% and an additional amount of
not less than 10% of such premium rate for each hour of work
performed
 Illustration:
An employee with a daily wage of P145.00 who works on
October 31 at 10:00 pm to 6:00 am of the following day
(November 1), which is a special day, will receive P195.00,
computed as follows:
Hourly Rate
P145.00 ÷ 8 hours = P18.13
Rate for 2-hour work on
P18.13 x 2 hours = P36.26
October 31
Rate for 6-hour work
on November 1
P18.13 x 6 hours + 30%
premium* = P141.38
Total Pay
*30% premium = 0.30 x (18.13 x 6)
** 10% = 0.10 x (36.26 + 141.38)
REGULAR HOLIDAY
 Regular wage PLUS no less than 10% of such premium rate for
each hour of work performed
 Illustration
An employee with a daily wage of P145.00 who works on April 8
at 10:00 pm to 6:00 am of the following day (April 9), which is a
regular holiday, will receive P279.20, computed as follows:
Hourly Rate
P145.00 ÷ 8 hours = P18.13
Rate for 2-hour work on April 8 P18.13 x 2 hours = P36.26
Rate for 6-hour work on April 9 P18.13 x 6 hours + 200%
premium* = P217.56
Total Pay
P36.26 + P217.56 + 10%** =
P279.20
*200% premium = 2 x (18.13 x 6)
** 10% = 0.10 x (36.26 + 217.56)
OVERTIME WORK BETWEEN 10:00 PM AND 6:00 AM
 Regular wage PLUS at least 25% and an additional amount of
no less than 10% of such overtime rate for each hour of work
performed between 10:00 pm and 6:00 am
 Illustration
An employee with a daily wage of P145.00 who works from 2:00
pm until 12:00 midnight, will receive P194.86, computed as
follows:
Hourly Rate
P145.00 ÷ 8 hours = P18.13
Overtime Rate for 2 hours
P18.13 x 2 hours =
P36.26
Night Shift Differential for 2 hours
P18.13 x 6 hours +
200%
premium* =
P217.56
Total Pay
P36.26 + P217.56 +
10%**
=
P279.20
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P36.26 + P141.38 + 10%** =
P195.40
42! Labor'Standards'Reviewer'–'Atty.'Ungos!
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*200% premium = 2 x (18.13 x 6)
** 10% = 0.10 x (36.26 + 217.56)
Art. 87. Overtime work. Work may be performed beyond eight (8)
hours a day provided that the employee is paid for the overtime work, an
additional compensation equivalent to his regular wage plus at least
twenty-five percent (25%) thereof. Work performed beyond eight hours
on a holiday or rest day shall be paid an additional compensation
equivalent to the rate of the first eight hours on a holiday or rest day plus
at least thirty percent (30%) thereof.
1. Concept of Overtime Work
 Overtime Work – services rendered in excess of 8 hours in a
day
 Day – 24-hour period commencing from the time the employee
started working
 Rest day work – work rendered during rest days
 Holiday work – work rendered during holidays
2. Reason for the Law
 Compensate the inconvenience of an employee who works
beyond 8 hours
o
o
Not contrary to public policy because what is
compromised is the claim for unpaid (past) overtime
compensation, not the right to overtime compensation
The compromise does not relieve the employer from
paying future overtime compensation
5. Estoppel and Laches Not a Defense
 The principle of estoppels and laches is not a defense in claims
for overtime compensation
 Reason – it will bring about a situation whereby the employee
who cannot expressly renounce their right to extra
compensation for overtime work, may be compelled to
accomplish the same by mere silence or lapse of time, thereby
frustrating the purpose of the law by indirection
6. Prescription is a Defense
 May be raised as a defense, pursuant to Art. 291 of the Labor
Code
7. Burden of Proof
 Complainant
 Should prove that overtime work was actually performed
3. Compensability of Unauthorized Overtime Work
 Compensable if:
o Work performed was necessary
o Benefited the company
o Employee could not abandon his work at the end of the
8-hour period because there was no substitute ready to
take his place
 Performed upon order of his immediate superior notwithstanding
the fact that there was a standing circular to the effect that
before overtime work may be performed with pay, the approval
of the corresponding department head should be secured
8. Overtime Rates
ORDINARY DAY
 Regular wage PLUS at least 25% thereof
 Illustration:
An employee with a daily wage of P145.00 who renders 2-hour
overtime work on an ordinary day will receive P190.32,
computed as follows:
Hourly Rate
P145.00 ÷ 8 hours = P18.13
Overtime Rate for 2 Hours
P18.13 x 2 hours + 25%* =
P45.32
Total Pay
P145.00 + P45.32 = P190.32
*25% = 0.25 x (18.13 x 2)
4. Waiver of Overtime Pay
 Founded on public policy, thus, cannot be waived
 Claim for unpaid overtime compensation – can be compromised
o Allowed by Art. 227 of the Labor Code
SPECIAL DAY OR REST DAY
 Rate for the first 8 hours on the special day or rest day PLUS at
least 30% thereof
 Illustration:
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43! Labor'Standards'Reviewer'–'Atty.'Ungos!
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An employee with a daily wage of P145.00 who works for 10
hours on a special day or rest day will receive P249.75,
computed as follows:
Special Day/Rest Day Rate
P145.00 + 30% premium pay*
=
P188.50
Hourly Rate
P188.50 ÷ 8 hours = P23.56
Overtime Rate for 2 Hours
P23.56 x 2 hours + 30%** =
P61.25
Total Pay
P188.50 + P61.25 = P249.75
*30% premium pay = P145.00 x 0.30
**30% = 0.30 x (23.56 x 2)
REGULAR HOLIDAY
 Rate for the first 8 hours on such holiday PLUS at least 30%
thereof
 Illustration:
An employee with a daily wage of P145.00 who works for 10
hours on May 1 (Labor Day) will receive P384.25, computed as
follows:
Regular Holiday Rate
P145.00 x 200% = P290.00
Hourly Rate
P290.00 ÷ 8 hours = P36.25
Overtime Rate for Hours
P36.25 x 2 hours + 30%* =
P94.25
Total Pay
P290.00 + P94.25 = P384.25
*30% = 0.30 x (36.25 x 2)
REGULAR HOLIDAY
 Regular holiday-rest day rate for the first 8 hours on such
holiday PLUS at least 30% thereof
 Illustration:
An employee with a daily wage of P145.00 whose rest day is on
a Sunday, and renders a 2-hour overtime work on the last
Sunday of August (National Heroes Day), will receive P499.51,
computed as follows:
Regular Holiday Rate
P145.00 x 200% +
30%*
=
P377.00
Hourly Rate
P377.00 ÷ 8 hours =
P47.12
Overtime Rate for Two (2) Hours
P122.51
Total Pay
P377.00 + P122.51 =
P499.51
*30% = 0.3 x (P145.00 x 2)
**30% = 0.3 x (P47.12 x 2)
Art. 88. Undertime not offset by overtime. Undertime work on any
particular day shall not be offset by overtime work on any other day.
Permission given to the employee to go on leave on some other day of
the week shall not exempt the employer from paying the additional
compensation required in this Chapter.
1. Prohibition Against Offsetting
 The obligation to pay overtime compensation is mandatory
 Under offsetting, the employee is made to pay twice for his
undertime because his work is reduced to that extent while he
was made to pay for it with work beyond the regular working
hours
 Proper method – deduct the undertime from the accrued leave
but pay the overtime to which the employee is entitled
Art. 89. Emergency overtime work. Any employee may be required by
the employer to perform overtime work in any of the following cases:
a. When the country is at war or when any other national or local
emergency has been declared by the National Assembly or the
Chief Executive;
b. When it is necessary to prevent loss of life or property or in case
of imminent danger to public safety due to an actual or
impending emergency in the locality caused by serious
accidents, fire, flood, typhoon, earthquake, epidemic, or other
disaster or calamity;
c.
When there is urgent work to be performed on machines,
installations, or equipment, in order to avoid serious loss or
damage to the employer or some other cause of similar nature;
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P47.12 x 2 hours +
30%**
=
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d. When the work is necessary to prevent loss or damage to
perishable goods; and
e. Where the completion or continuation of the work started before
the eighth hour is necessary to prevent serious obstruction or
prejudice to the business or operations of the employer.
Any employee required to render overtime work under this Article shall
be paid the additional compensation required in this Chapter.
1. Compulsory Overtime Work
 General Rule – an employee cannot be compelled to render
overtime work
o Reason – it is violative of the constitutional injunction
against involuntary servitude
 Exceptions:
a. War or emergency situation
b. Disaster or calamity
c. Urgent repairs
d. Preservation of perishable goods
e. Completion of work
f. Take advantage of favorable condition
Art. 90. Computation of additional compensation. For purposes of
computing overtime and other additional remuneration as required by
this Chapter, the "regular wage" of an employee shall include the cash
wage only, without deduction on account of facilities provided by the
employer.
1. The Regular Wage
 Confined to cash wage ONLY, without deduction on account of
facilities provided by the employer
 Includes all payments which the parties have agreed shall be
received during the work week, including piecework wages,
differential payments for working at undesirable times, such as
at night or on Saturdays and holidays, and the cost of board and
lodging customarily furnished the employee (NAWASA vs.
NWSA Consolidated Unions)
 The essence is regularity and continuity of enjoyment
o
Therefore, cash benefits not regularly and continuously
enjoyed do not form part of the regular wage, hence,
they cannot be included in the computation of overtime
pay, night shift differential, etc.
Art. 91 Right to weekly rest day.
Rest Day is the period of inactivity of not less than 24 consecutive hours
to an employee after rendering service for a week.
Week of labor ordinary number of six labor days.
Purpose of the law
The purpose of granting a rest day is to promote the health, well-being
and happiness of the working class.
Rest day of ordinary employees: 24 consecutive hours after every six
consecutive normal work days.
Rest day of health personnel:
Cities or municipalities:
Less than 1M population or in hospital or clinics with less than
100 bed capacity: 24 consecutive hours, after every 6 consecutive
normal work days.
Atleast 1M population or in hospitals or clinics with atleast 100
bed capacity: 48 hours after 5 days work.
Who determines rest day?
GR: EMPLOYER
EXP: preference of the employee should be respected if based on
religious grounds, provided he inform the employer in writing atleast 7
days before the desired effectivity of the initial rest day so preferred.
Notice of rest day:
All employees simultaneously: written notice posted conspicuously in
the workplace at least 1 week before it becomes effective.
Not to all employees: employer should inform the employees
concerned through written notices posted conspicuously in the
workplace at least 1 week before it becomes effective.
Art 92. When employer may require work on a rest day.
GR: the employer may not require the employees to work on a restday.
EXP:
1. Disaster/calamity
2. Urgent repairs
3. Abnormal pressure of work
4. Prevention of perishable goods
5. Nature of work
6. Favorable weather condition
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7. Exigencies of service
Art 93. Compensation of rest day, Sunday, or holiday work.
Premium pay
Additional compensation given to a covered employee for
working on a holiday or rest day.
RATES:
a. On a rest day or special day
Additional compensation of atleast 30% of his regular
wage.
b. On a special day falling on a rest day
Additional compensation of atleast 50% of his regular
wage.
c. On a regular holiday
Not exceeding 8 hours shall be paid atleast 200% of his
regular daily wage.
d. On a regular holiday falling on a rest day
Additional compensation of atleast 30% of his regular
holiday rate of 200%.
GR: Sunday work considered an ordinary day, not entitled to premium
pay,
EXP: unless it is the established rest day.
EXP to EXP: no regular work days and no regular rest day scheduled,
entitled to premium pay for the Sunday work.
Employees not entitles to premium pay:
a. Government employees and those employed in governmentowned or controlled corporations;
b. Managerial employees within the purview of Book III of the labor
code;
c. Officers and members of managerial staff;
d. Domestic servants;
e. Persons in the personal service of another;
f. Workers paid by result;
g. Non-agricultural field personnel; and
h. Members of the family of the employer who are dependent upon
him for support.
th
*premium pay not considered in computation of 13 month pay.
Art 94. Right to holiday pay.
Holiday pay
Is a premium given to an employee during regular holidays.
Purpose: to prevent diminution of the monthly income
of employees on account of work interruptions.
Rate: The holiday pay is 100% of the regular daily
wage.
• Employee is entitled to holiday pay even if he does not work
during the regular holiday.
• If the employee works, he gets 200% of his regular daily wage.
List of regular holidays
a. New Year’s Day- Jan 1
b. Maundy Thursday- movable date
c. Good Friday- movable date
d. ‘Id-ul-Fitr- movable date
e. Araw ng kagitingan- April 9
f. Labor Day- May 1
g. Independence Day- June 12
h. National Heroes Day- last Sunday of august
i. Bonifacio day- Nov 30
j. Christmas Day- Dec 25
k. Rizal Day- Dec 30
l. Eid’l Adha- movable date
• Muslim holidays (ART 169 of the code of muslim personal laws
of the Philippines) by virtue of proclamation no. 1198 which took
effect on oct 26, 197, all private corporations, offices, agencies
and entities or establishments operating within muslim provinces
and cities shall observe the said holidays, all employees
whether muslims or non-muslims, are excused from reporting
for work without reduction in their usual compensation.
o Muslim employees working outside muslim provinces
and cities shall also be excused without diminution or
loss of wage.
Employees Not entitled to holiday pay
a. Government employees and those employed in governmentowned or controlled corporations;
b. Managerial employees;
c. Officers and members of managerial staff;
d. Domestic helpers;
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e. Persons in the personal service of another;
f. Employees of retail and service establishments regularly
employing less than 10 workers;
g. Field personnel and other employees whose time and
performance is unsupervised by the employer;
h. Members of the family of the employer who are dependent upon
him for support.
i. Workers paid by results.
Rules:
Piece rate workers: not entitled, paid at fixed amount performing work
irrespective of time consumed in performance.
Sales personnel: not entitled, they regularly perform their duties away
from the principal place of business, and their actual hours of work
cannot be determined with reasonable certainty.
Seasonal workers: not entitled during off- season when they are not at
work.
Teacher and faculty members: not entitled to holiday pay on regular
holidays falling within semestral vacation. However, entitled on regular
holidays falling within the Christmas vacation.
• Faculty members who according to their contracts are paid per
lecture hour: not entitled because they are obliged to work and
consent to be paid only for work actually done.
Monthly-paid employees: entitled
*GR: for the company with the divisor 365 already means that
the legal holidays are included in the monthly pay of the employee.
*GR: for company with the divisor 251 means that the holiday
pay is not included in the monthly salary of the employee.
Effects of Absences:
• Covered employees are entitled to holiday pay when they are on
leave of absence with pay.
• Employees who are on leave of absence without pay on the day
immediately preceding the regular holiday are not entitled to
holiday pay.
•
•
If the days immediately preceding the regular holiday is a nonworking day or rest day of the employee, he is not deemed to be
on a leave of absence therefore entitled to holiday pay if he
worked on the day preceding the non-working holiday.
If there are 2 successive regular holidays, the employee is not
entitled to holiday pay if he absents himself on the day
immediately preceding the first holiday.
o However, if he works on the first holiday, he is entitled
to holiday pay on the second holiday.
Double Holiday:
• 200% of the basic wage
o Entitled even if said holiday is unworked
• 400% if he worked on 2 regular holidays falling on the same
day.
Holidays when business is closed
• Temporary: entitled
• Permanent: not entitled
ART 95. Right to service Incentive leave
Service incentive leave:
• is akin to vacation leave.
• Intended not merely to give additional salary but to give chance
to get much needed rest in order to replenish his worn our
energies.
• Law grant 5 days leave with pay for every employee who has
rendered at least 1 year of service.
• If not used at the end of the year, shall be commuted to its
money equivalent.
Employees not entitled:
a. Government employees and those employed in governmentowned or controlled corporations;
b. Managerial employees;
c. Officers and members of managerial staff;
d. Domestic helpers;
e. Persons in the personal service of another;
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f.
Employees of retail and service establishments regularly
employing less than 10 workers;
g. Field personnel and other employees whose time and
performance is unsupervised by the employer;
h. Members of the family of the employer who are dependent upon
him for support.
i. Those who are already enjoying leave with pay atleast 5 days;
*Vacation Leave: not standard of law, management prerogative.
ART 96. Service charge:
• Applies only to business establishments collecting service
charges, such as hotels, restaurants and similar enterprises,
including those entities operating primarily as private
subsidiaries of the government.
Employees entitled to service charge:
• All employees, regardless of their position, designation,
employment status, irrespective of the method by which they are
paid, except managerial employees.
Distribution of service charge:
• 85% for covered employees
• 15% for management
• Distribution to covered employees shall be done not less than
once every two weeks or twice a month intervals not exceeding
16 days.
Abolition of service charge:
• The share of the covered employees shall be considered
integrated in their wages.
The basis of the amount to be integrated shall be the average share of
each employee for the past 12 months immediately preceding the
abolition or withdrawal of such charges.
Title III
Working Conditions for Special Groups of Women
Chapter I
Employment of Women
ARTICLE 130.Nightwork Prohibition—
-applies to all employers whether operating for profit or not:
(a) government employees and GOC or GCC
(b) employers of household helpers and persons in personal service of
another
General Rule: An employer cannot require a female employee to work
with or without compensation on the following hours:
(a) industrial establishment- 10:00pm to 6:00am
(b) commercial establishment- 12midnight to 6:00am
(c) agricultural establishment- nighttime (the period commencing
from sunset to sunrise[Art. 13 of CC]
ARTICLE 131.Exceptions—
-nightwork prohibition does not apply t the following cases:
(a) emergency situation- disasters or calamity, or in case of force
majeure or imminent danger to public safety
(b) urgent repairs- on machineries, equipment or installation to avoid
serious loss
(c) urgent work- to prevent serious loss of perishable goods
(d) managerial or technical employees
(e) health and welfare employees(f) peculiarity of work- where the work cannot be performed with equal
efficiency by male workers
(g) family members- the immediate member of the family operating the
establishment
(h) established practice- where the employment of female workers is the
established practice even before the rules of implementing the Labor
Code became effective (Feb. 3, 1975)
(i) analogous cases- exempted by the Secretary of Labor in appropriate
cases
ARTICLE 132.Facilities for Women—
-employers may be required to provide the following facilities to female
workers which shall be regulated in appropriate cases by the Secretary
of Labor:
(a) seats
(b) toilet rooms, lavatories, a dressing room
(c) nursery
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ARTICLE 133.Maternity Leave Benefits—
-has been superseded with the integration of maternity leave with the
Social Security Law, Sec. 14-A:
-female workers must have paid at least 3 monthly contributions
in the 12-month period immediately preceding the childbirth, abortion,
miscarriage
-shall be paid daily maternity benefit equivalent to her average
daily salary
(a) 60days- normal delivery
(b) 78days- cesarean delivery
-conditions:
(a) Employee has notified her employer of her pregnancy ad the
probable date of birth
(b) Full payment shall be advanced by the employer 30days from
filing of the application
(c) Payment of benefits bars the recovery of sickness benefits within
the period of leave
(d) Applicable only for the first four deliveries or miscarriages
(e) SSS shall immediately reimburse the employer 100%
(f) Employer will pay to the SSS damages equivalent to the benefits
which the female employee is entitled, in cases where:
o 1) he failed to remit the SSS contributions required
o 2) he failed to notify SSS of such pregnancy
Paternity Leave (R.A No. 8187)
Leave for 7 days
-Who are entitled? Married male employees for the first 4 deliveries of
the legitimate spouse with whom he is cohabiting
-conditions:
(a) male employee should be employed at the time of the delivery of his
child
(b) employee should notify his employer about the pregnancy of his wife
and the expected date of delivery
(c) wife has given birth, suffers a miscarriage or an abortion
- paternity leave is not convertible to cash
- leave can be availed of before, during or after the delivery by his wife,
but not later than 60 days the delivery
Parental Leave for Solo Parents (R.A No. 8972- Solo Parents’ Act of
2000)
-Who are solo parents:
(a) a woman who gives birth as a result of rape or crimes against
chastity, WON the offender is convicted
(b) a parent left solo with the responsibility of parenthood due to:
i. death of the spouse
ii. detention of the spouse for at least a year
iii. physical of mental incapacity of spouse
iv. legal separation of spouse of de facto separation as long as
he/she is entitled to the custody of the children
v. declaration of nullity of marriage, above condition applies
vi. abandonment of the spouse for at least one year
(c) unmarried mother/father
(d) any other person, provided that he/she is a licensed foster parent by
the DSWD or appointed as guardian by the court
(e) any family member who assumes as the head of the family because
of death, absence, disappearance of abandonment of parents, provided
that such lasts for at least a year
-entitled to a non-cumulative parental leave of 7 working days
-purpose: enable the solo parent to perform parental duties
-conditions:
(a) employee must have rendered at least one year of service
(b) must notify the employer within a reasonable time
(c) must present his Solo Parent ID to the employer
ARTICLE 134. Family Planning Services; Incentives for Family Planning
-application: to all establishments which habitually employ at least 200
at any given period within a year
-In-plant family planning requirements:
(a) a functional Labor-Management Coordinating Committee (2 to 3
representatives from each management sectors)
(b) an in-plant family planning program
(c) a clinic equipped with instruments for family planning services
-exempted establishments must have a family planning clinic in the
workplace which should have a part-time physician who shall render
2hours a day for at least 5days, unless the establishment has a contract
with a hospital
ARTICLE 135. Discrimination Prohibited—
-It shall be unlawful to discriminate against women employee:
(a) payment of lesser compensation as against male employee
for work of equal value
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(b) favoring male employees (promotion, training opportunities,
study, scholarship grants) solely on the account of their sexes
-purpose: to provide equal employment opportunities for all and ensure
the fundamental equalities of men and women
ARTICLE 136.Stipulation Against Marriage—
-Prohibited acts of an employer:
(a) that a female employee shall not get married
(b) to resign upon getting married
(c) dismissing or discriminating a female employee because of her
marriage
-Philippine Telegraph & Telephone Co. vs NLRC:
Facts: Female was hired by employer. She indicated that she was single
in her job application form despite the fact that she had contracted
marriage a few months earlier. When the employer learned that she was
married, she was dismissed from employment. Employer has a
company policy of not accepting married women.
Held: Dismissal is not valid. It runs afoul to the right against
discrimination, afforded to women workers. It likewise assaults good
morals and public policy. It strikes the ideals and purpose of marriage as
an inviolable social institution.
ARTICLE 137.Prohibited Acts—
- Forbids an employer from:
(a) dismiss a female employee to prevent her to enjoy maternity leave
benefits, etc
(b) dismiss a female employee on the account of her pregnancy, while
on leave
(c) dismiss or refuse the admission of female employee upon returning
to work
ARTICLE 138. Classification of Certain Women Workers—
- Female workers in entertainment places (night club, cocktail
lounge, massage clinic, bar, etc) are deemed employed if they
have worked therein for a substantial period of time under the
effective control or supervision of the employee.
Chapter 2
Employment of Minors
ARTICLE 139. Minimum Employment Age—
-superseded by RA No. 7610, as amended by RA nos. 7658 and 9231
-General Rule: a person can be engaged for employment only when he
is 15 years old
-Exceptions, children below 15 can be employed only in the following
instances:
(a) when the child works directly under the sole responsibility of his
parent or guardian, and only member of his family is employed therein,
provided that:
i. employment neither endangers his life, safety, health and
morals, nor impairs his normal development
ii. child is prescribed with primary and secondary education
(b) child’s employment in public and entertainment or information
through cinema, theater, radio or TV is essential:
-House Work:
(a) children below 15- not more than 4 hours, but not more than
20/week
(b) children 15 but below 18- not more than 8 hours a day, but
not more than 40/week
-Nightwork prohibition:
(a) children below 15- 8pm to 6am
(b) children 15 but below 18- 10pm to 6am
-Worst Forms of Child Labor:
-slavery, prostitution, pornography, illegal activities (i.e
dangerous drugs), nature of work in which it is carried out in hazardous
or likely to be harmful to health, safety and morals of children
ARTICLE 140. Prohibition Against Child Discrimination—
-they must not be discriminated against simply on account of minority.
-minors must be entitled to the same benefits, terms, and conditions of
employment as any other kind of employee similarly situated
Chapter III
Employment of Househelpers
ARTICLE 141. Coverage—
-shall apply to all persons rendering services in households for
compensation.
“Domestic or household service”: services in the employer’s home which
is usually necessary or desirable in the maintenance and enjoyment
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thereof and includes ministering to the personal comfort and
convenience of the members of the employer’s household, including
services of family drivers.
- other examples: gardeners, cooks, nursemaids
- One should be hired specifically for household work. In absence
of specific engagement one cannot be considered househelper.
Ex. Children of househelper or relatives who live under the
employers roof
Apex Mining Co. vs NLRC:
FACTS: SC was employed by Apex Mining as laundrywoman at its
staffhouse. While she was doing the laundry, she accidentally slipped
and hit her back on a stone. She was permitted to go one leave for the
medication but after such she was not allowed to return to work. She
filed a complaint for illegal dismissal. Apex Mining’s defense is that she
was not a regular employee but a househelper.
HELD: She was not a househelper but a regular employee. She was not
working for a family but for a compensation.
Barcenas vs. NLRC:
FACTS: B was hired by Manila Buddist Temple as secretary and
interpreter. B’s position required her to receive calls of the Head Monk,
run errands for the Head Monk. After the death of the Head Monk, B’s
allowance was discontinued. B filed a compliant for illegal dismissal. The
Manila Buddist Temple claimed that she was not its employee but a
servant who confined herself to the needs of the Head Monk, thus, her
position was coterminous with that of her master.
HELD: B was a regular employee. Her work cannot be categorized as
mere domestic but essential to the operation and religious functions of
the temple.
ARTICLE 142. Contracts of Domestic Service—
-maximum of 2 years
ARTICLE 143. Minimum Wage—
-amended
ARTICLE 144.Minimum Cash Wage—
-minimum wage refers to cash wage only
-it does not include cost of lodging, food, medical attendance, etc.
ARTICLE 145.Assignment to Non-Household Work—
-what is prohibited is not the assignment to work in a commercial,
industrial or agricultural enterprise; it is the payment of wage lower than
those prescribed in the non-household work
ARTICLE 146.Opportunity for Education—
-if under 18years old, the employer shall give him/her an opportunity for
at least elementary education
-expenses shall be part of the compensation
ARTICLE 147.Treatment of househelpers—
- just and humane manner
- in no case shall physical violence be used
Working hours: not more than 10hours a day; with 4days vacation each
month with pay
ARTICLE 148. Board, Lodging and Medical Attendance—
-Medical attendance is limited to treatment for ailments contracted by
househelper while in the service of the employer
-Does not include hospitalization
-Contract for household service shall be void if household helper cannot
afford to acquire clothing
-in case of death, employer shall bear the funeral expenses
commensurate to the standard of living of the deceased
-the transfer or use of the body of the deceased is prohibited, unless
allowed by him or the legal guardian with court approval
ARTICLE 149.Indemnity for Unjust Termination—
-If period is fixed, neither the employer nor the household helper ay
terminate, except for a just cause
-If household helper is unjustly dismissed: he shall be paid the
compensation plus that for 15days by way of indemnity
-If household helper leaves without justifiable reason: he shall forfeit
unpaid salary due him not exceeding 15days
ARTICLE 150.Service of termination notice—
-If there is no stipulated period, the employer can terminate the
household helper by giving him notice 5days before the intended date
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ARTICLE 151.Employment Certification—
- a written statement of the nature and duration of the service
- includes,the efficiency and conduct as household helper
ARTICLE 152.Employment Records—
- employer may keep records to reflect the actual terms and
conditions of employment
- helper shall authenticate such by signature or thumbmark
Chapter IV
Employment of Homeworkers
ARTICLE 153.Regulation of Industrial Homeworkers
-“Industrial homework”- a system of production under which work for an
employer or contractor is carried out by a homeworker at his home.
Limitation:
(a) explosives, fireworks, and similar articles
(b) drugs and poisons
(c) other articles, processing of which requires exposure to toxic
substances
-Homeworkers organization, may be form, assist or join organizations
duly registered with the Dept. of Labor
-the duly registered organization has the right to bargain collectively, to
own property, to sue and be sued, etc.
ARTICLE 154. Regulations of the Secretary of Labor
-Payment for Homework- immediately upon receipt of the finished goods
or articles
-Conditions:
(a) employer may require the homeworker to redo a work which has
been improperly executed without having to pay the stipulated rate
again
(b) an employer, contractor or sub-contractor need not pay the home
worker for any work which has been done on goods or articles which
have been returned for reasons attributable to the fault of the
homeworker
-Standard rates shall be determined through the ff. procedure:
(a) time and motion studies
(b) individual/ collective agreement between the employer and
its workers as approved by the Secretary of Labor or his representative
(c) consultation with representative of employers and workers
orgs in a tripartite conference
ARTICLE 155: Distribution of Homework—
-employer of homeworkers- includes: any person, natural or artificial,
who, for his account, or on behalf of any person residing outside the
country, directly or indirectly, or through any employee, agent,
contractor, or subcontractor, or any other person:
(1) delivers or causes to be delivered any materials to be
processed in a home and thereafter to be returned and distributed
according to his directions
(2) sells any goods, articles, materials to be processed or
fabricated in a home and then rebuys them after such processing, either
himself or though another person
-agents of foreign principals are considered employers
-contractor and subcontractor- any person who for the account of or
benefit of an employer delivers or causes to be delivered to the
homeworker goods or articles; and thereafter be returned or distributed
according to the direction of employer
-employer is jointly and severally liable with the contractor or
subcontractor
SPECIAL LAWS
REPUBLIC ACT NO. 10151
AN ACT ALLOWING THE EMPLOYMENT OF NIGHT WORKERS,
THEREBY REPEALING ARTICLES 130 AND 131 OF PRESIDENTIAL
DECREE NUMBER FOUR HUNDRED FORTY-TWO, AS AMENDED,
OTHERWISE KNOWN AS THE LABOR CODE OF THE PHILIPPINES
SECTION 1. Article 130 of the Labor Code is hereby repealed.
SEC. 2. Article 131 of the Labor Code is hereby repealed.
SEC. 3. The subsequent articles in Boot Three, Title III, Chapter I to
Chapter IV of Presidential Decree No. 442 are hereby renumbered
accordingly.
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SEC. 4. A new chapter is hereby inserted after Book Three, Title III of
Presidential Decree No. 442, to read as follows:
“Chapter V
“Employment of Night Workers
“Art. 154. Coverage.— This chapter shall apply to all persons, who shall
be employed or permitted or suffered to work at night, except those
employed in agriculture, stock raising, fishing, maritime transport and
inland navigation, during a period of not less than seven (7) consecutive
hours, including the interval from midnight to five o’clock in the morning,
to be determined by the Secretary of Labor and Employment, after
consulting the workers’ representatives/labor organizations and
employers.
‘”Night worker’ means any employed person whose work requires
performance of a substantial number of hours of night work which
exceeds a specified limit. This limit shall be fixed by the Secretary of
Labor after consulting the workers’ representatives/labor organizations
and employers.”
“Art. 155. Health Assessment, – At their request, workers shall have the
right to undergo a health assessment without charge and to receive
advice on how to reduce or avoid health problems associated with their
work:
“(a) Before taking up an assignment as a night worker;
“(b) At regular intervals during such an assignment; and
“(c) If they experience health problems during such an assignment which
are not caused by factors other than the performance of night work.
“With the exception of a finding of unfitness for night work, the findings
of such assessments shall not be transmitted to others without the
workers’ consent and shall not be used to their detriment.”
“Art. 156. Mandatory Facilities.— Suitable first-aid facilities shall be
made available for workers performing night work, including
arrangements where such workers, where necessary, can be taken
immediately to a place for appropriate treatment. The employers are
likewise required to provide safe and healthful working conditions and
adequate or reasonable facilities such as sleeping or resting quarters in
the establishment and transportation from the work premises to the
nearest point of their residence subject to exceptions and guidelines to
be provided by the DOLE.”
“Art. 157. Transfer.— Night workers who are certified as unfit for night
work, due to health reasons, shall be transferred, whenever practicable,
to a similar job for which they are fit to work.
“If such transfer to a similar job is not practicable, these workers shall be
granted the same benefits as other workers who are unable to work, or
to secure employment during such period.
“A night worker certified as temporarily unfit for night work shall be given
the same protection against dismissal or notice of dismissal as other
workers who are prevented from working for reasons of health.”
“Art. 158. Women Night Workers.— Measures shall be taken to ensure
that an alternative to night work is available to women workers who
would otherwise be called upon to perform such work:
“(a) Before and after childbirth, for a period of at least sixteen (16)
weeks, which shall be divided between the time before and after
childbirth;
“(b) For additional periods, in respect of which a medical certificate is
produced stating that said additional periods are necessary for the
health of the mother or child:
“(1) During pregnancy;
“(2) During a specified time beyond the period, after childbirth is fixed
pursuant to subparagraph (a) above, the length of which shall be
determined by the DOLE after consulting the labor organizations and
employers.
“During the periods referred to in this article:
“(i) A woman worker shall not be dismissed or given notice of dismissal,
except for just or authorised causes provided for in this Code that are
not connected with pregnancy, childbirth and childcare responsibilities.
“(ii) A woman worker shall not lose the benefits regarding her status,
seniority, and access to promotion which may attach to her regular night
work position.
‘Pregnant women and nursing mothers may he allowed to work at night
only if a competent physician, other than the company physician, shall
certify their fitness to render night work, and specify, in the ease of
pregnant employees, the period of the pregnancy that they can safely
work.
“The measures referred to in this article may include transfer to day work
where this is possible, the provision of social security benefits or an
extension of maternity leave.
“The provisions of this article shall not have the effect of reducing the
protection and benefits connected with maternity leave under existing
laws.”
“Art. 159. Compensation.— The compensation for night workers in the
form of working time, pay or similar benefits shall recognize the
exceptional nature of night work.”
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“Art. 160. Social Services.—Appropriate social services shall be
provided for night workers and, where necessary, for workers performing
night work.”
“Art. 161. Night Work Schedules.— Before introducing work schedules
requiring the services of night workers, the employer shall consult the
workers’ representatives/labor
organizations concerned on the details of such schedules and the forms
of organization of night work that are best adapted to the establishment
and its personnel, as well as on the occupational health measures and
social services which are required. In establishments employing night
workers, consultation shall take place regularly.”
SEC. 8. Penalties.— Any violation of this Act, and the rules and
regulations issued pursuant hereof shall be punished with a fine of not
less than Thirty thousand pesos (P30,000.00) nor more than Fifty
thousand pesos (P50,000.00) or imprisonment of not less than six (6)
months, or both, at the discretion of the court. If the offense is committed
by a corporation, trust, firm, partnership or association, or other entity,
the penalty shall be imposed upon the guilty officer or officers of such
corporation, trust, firm, partnership or association, or entity.
who shall prejudice any person for assisting a co-employee who is a
victim under this Act shall likewise be liable for discrimination.
Republic Act No. 9710
AN ACT PROVIDING FOR THE MAGNA CARTA OF WOMEN
Section 18. Special Leave Benefits for Women. - A woman employee
having rendered continuous aggregate employment service of at least
six (6) months for the last twelve (12) months shall be entitled to a
special leave benefit of two (2) months with full pay based on her gross
monthly compensation following surgery caused by gynecological
disorders.
REPUBLIC ACT NO. 8187
Republic Act No. 9262
AN ACT DEFINING VIOLENCE AGAINST WOMEN AND THEIR
CHILDREN, PROVIDING FOR PROTECTIVE MEASURES FOR
VICTIMS, PRESCRIBING PENALTIES THEREFORE, AND FOR
OTHER PURPOSES
SECTION 43. Entitled to Leave. – Victims under this Act shall be entitled
to take a paid leave of absence up to ten (10) days in addition to other
paid leaves under the Labor Code and Civil Service Rules and
Regulations, extendible when the necessity arises as specified in the
protection order.
Any employer who shall prejudice the right of the person under this
section shall be penalized in accordance with the provisions of the Labor
Code and Civil Service Rules and Regulations. Likewise, an employer
AN ACT GRANTING PATERNITY LEAVE OF SEVEN (7) DAYS WITH
FULL PAY TO ALL MARRIED MALE EMPLOYEES IN THE PRIVATE
AND PUBLIC SECTORS FOR THE FIRST FOUR (4) DELIVERIES OF
THE LEGITIMATE SPOUSE WITH WHOM HE IS COHABITING AND
FOR OTHER PURPOSES.
SECTION 2. Notwithstanding any law, rules and regulations to the
contrary, every married male employee in the private and public sectors
shall be entitled to a paternity leave of seven (7) days with full pay for
the first four (4) deliveries of the legitimate spouse with whom he is
cohabiting. The male employee applying for paternity leave shall notify
his employer of the pregnancy of his legitimate spouse and the
expected date of such delivery.
For purposes, of this Act, delivery shall include childbirth or any
miscarriage.
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REPUBLIC ACT NO. 8972
AN ACT PROVIDING FOR BENEFITS AND PRIVILEGES TO SOLO
PARENTS AND THEIR CHILDREN, APPROPRIATING FUNDS
THEREFOR AND FOR OTHER PURPOSES
Section 3. Definition of Terms. - Whenever used in this Act, the
following terms shall mean as follows:
(a) "Solo parent" - any individual who falls under any of the following
categories:
(1) A woman who gives birth as a result of rape and other crimes
against chastity even without a final conviction of the
offender: Provided, That the mother keeps and raises the child;
(2) Parent left solo or alone with the responsibility of parenthood due
to death of spouse;
(3) Parent left solo or alone with the responsibility of parenthood while
the spouse is detained or is serving sentence for a criminal conviction
for at least one (1) year;
(4) Parent left solo or alone with the responsibility of parenthood due
to physical and/or mental incapacity of spouse as certified by a public
medical practitioner;
(5) Parent left solo or alone with the responsibility of parenthood due
to legal separation or de factoseparation from spouse for at least one
(1) year, as long as he/she is entrusted with the custody of the
children;
(6) Parent left solo or alone with the responsibility of parenthood due
to declaration of nullity or annulment of marriage as decreed by a
court or by a church as long as he/she is entrusted with the custody of
the children;
(7) Parent left solo or alone with the responsibility of parenthood due
to abandonment of spouse for at least one (1) year;
(8) Unmarried mother/father who has preferred to keep and rear
her/his child/children instead of having others care for them or give
them up to a welfare institution;
(9) Any other person who solely provides parental care and support to
a child or children;
(10) Any family member who assumes the responsibility of head of
family as a result of the death, abandonment, disappearance or
prolonged absence of the parents or solo parent.
A change in the status or circumstance of the parent claiming
benefits under this Act, such that he/she is no longer left alone with
the responsibility of parenthood, shall terminate his/her eligibility for
these benefits.
Section 6. Flexible Work Schedule. - The employer shall provide for a
flexible working schedule for solo parents: Provided, That the same shall
not affect individual and company productivity: Provided, further, That
any employer may request exemption from the above requirements from
the DOLE on certain meritorious grounds.
Section 7. Work Discrimination. - No employer shall discriminate
against any solo parent employee with respect to terms and conditions
of employment on account of his/her status.
Section 8. Parental Leave. - In addition to leave privileges under
existing laws, parental leave of not more than seven (7) working days
every year shall be granted to any solo parent employee who has
rendered service of at least one (1) year.
TITLE II
Wages
Chapter 1
PRELIMINARY MATTERS
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ARTICLE 97. Definitions. – As used in this Title:
(a) “Person” means an individual, partnership, association, corporation,
business trust, legal representatives, or any organized group of persons.
(b) “Employer” includes any person acting directly o r indirectly in the
interest
of
an
employer
in
relation
to an employee and shall include the government and all its branches,
subdivisions and instrumentalities, all government-owned or controlled
corporations and institutions, as well as non-profit private institutions, or
organizations.
(c) “Employee” includes any individual employed by an employer.
(d) “Agriculture” includes farming in all its branches and, among other
things,
includes
cultivation
and
tillage of soil, dairying, the production, cultivation, growing and
harvesting
of
any
agricultural
and
horticultural commodities, the raising of livestock or poultry, and any
practices
performed
by
a
farmer
on a farm as an incident to or in conjunction with such farming
operations,
but
does
not
include
the
manufacturing or processing of sugar, coconuts, abaca, tobacco,
pineapples or other farm products.
(e) “Employ” includes to suffer or permit to work.
(f) “Wage” paid to any employee shall mean the remuneration or
earnings, however designated, capable of being expressed in terms of
money, whether fixed or ascertained on a time, task, piece, or
commission basis, or other method of calculating the same, which is
payable by an employer to an employee under a written or unwritten
contract of employment for work done or to be done, or for services
rendered or to be rendered and includes the fair and reasonable value,
as determined by the Secretary of Labor and Employment, of board,
lodging, or other facilities customarily furnished by the employer to the
employee. “Fair and reasonable value” shall not include any profit to the
employer, or to any person affiliated with the employer.
•
-
Wages – remunerations or earnings payable by an employer to
an employee for work done or to be done or for services
rendered or to be rendered.
It should arise from employer-employee relationship
Includes the fair and reasonable value of board, lodging, and
other facilities customarily furnished by the employer to the
employee
Customarily – founded on long-established and constant
practice connoting regularity
WAGES
SALARY
Both refer to a reward or recompense for services
performed
Compensation for manual Denotes a higher grade of
labor, skilled or unskilled, employment, or a superior
paid at stated times and grade of services and
measured by the day, implies a position in office
week, month, or season
Indicates
considerable Suggestive of a higher and
play for lower and less more important service
responsible character of
employment
Exempt from attachment Not exempt
or execution
•
Basic Wage – regular base pay of an employee
•
Facilities – items of expense necessary for the laborer’s and his
family’s existence and subsistence
-
The cost of facilities furnished by the employer may be deducted
or charged against an employee under the ff conditions:
1. The facilities must be customarily furnished by the trade
2. The provisions of deductible facilities must be voluntarily
accepted in writing by the employee
3. The facilities must be charged at fair and reasonable value
•
Supplements – extra remuneration or special privileges or
benefits given to or received by the laborers over and above
their ordinary earnings or wages.
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-
•
•
Criterion whether a benefit is a supplement or a facility: purpose
Purpose: primarily for the benefit of the employee, not
considered as facility
Ex. Transportation allowance
4. Private school teachers who have worked at least 1 month
within the yr
5. Employees working in two or more private firms whether on
full-time or part-time basis
6. Employees who resigned or whose services were
th
terminated before the payment of the 13 month pay
Sales Commission – forms part of wage/salary where there
exists e-e relationship
Bonus – an amount granted and paid to an employee for his
industry and loyalty which contributed to the success of the
employer’s business and made possible the realization of profits
- GR: not a demandable and enforceable obligation
- Exceptions:
1. If the grant thereof is the result of an agreement
2. If made part of the wages
 Bonus is considered part of the wages:
a. If it is given in a fixed amount without any
condition, regardless of w/n profits are realized
b. If it has ripened into practice by virtue of its long
and regular concession
- To be considered a regular practice, the giving of bonus
should have been done consistently, voluntarily and
deliberately over a long period of time.
th
13 month pay –extra remuneration given to an employee in an
amount equivalent to 1/12 of the basic salary earned by an
employee within a calendar year
- In its computation, only the basic salary should be
considered
•
Overload – excess of the normal or regular teaching load
- Extra pay – not part of the basic salary, not included in
th
the computation of the 13 month pay
•
Entitled to 13 month pay:
1. Rank-and-file employees who have worked for at least 1
month during a calendar yr
2. Employees who are paid on piece-work basis
3. Employees who are paid a fixed or guaranteed wage plus
commission
th
•
•
•
th
Employers exempted from the 13 month pay law:
1. The gov’t and any of its subsidiaries, including GOCCs,
except those corps operating essentially as private
subsidiaries of the gov’t
th
2. Those already paying their employees a 13 month pay or
more in a calendar yr or its equivalent
3. Employers of household helpers and persons in the
personal service of another in relation to such workers
4. Those paid purely on commission, boundary or task basis,
and those who are paid fixed amount for performing specific
work, except where the workers are paid on a piece-rate
basis
th
Time of payment of 13 month pay: December 24 of each yr or
th
14 month pay – gratuitous
ARTICLE 98. Application of Title. – This Title shall not apply to farm
tenancy or leasehold, domestic service and persons working in their
respective homes in needle work or in any cottage industry duly
registered in accordance with law.
•
Exceptions on the application of the Coverage of the Law on
Wages:
1. Household or domestic helpers
2. Homeworkers engaged in needlework
3. Workers employed in any cottage industry duly registered in
accordance with law, if performed by workers in their
respective homes
4. Workers in any duly registered cooperative when so
recommended by the Bureau of Cooperative Development
and upon approval of the Secretary of DOLE
5. Farm tenancy or leasehold
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1. It cannot be waived (mandatory)
2. Not bargainable
•
Sanctions for failure or refusal to comply to pay the prescribed
wage increase:
1. Criminal liability – 25k - 100k; 2-4 yrs
2. Double indemnity – double the unpaid benefits owing to
employee
•
Agriculture – farming activities in conjunction with farming
operations. It includes:
1. The cultivation or tillage of soil
2. Dairying
3. The production, cultivation, growing and harvesting of
agricultural and horticultural commodities; and
4. The raising of livestock or poultry
•
The minimum wage rate of agricultural workers is different from
that of non-agricultural
Agricultural employee – a person who is employed in an
undertaking principally engaged in the foregoing activities
Chapter 2
MINIMUM WAGE RATES
ARTICLE 99. Regional minimum wages. – The minimum wage rates
for agricultural and non-agricultural employees and workers in each and
every region of the country shall be those prescribed by the Regional
Tripartite Wages and Productivity Boards. (As amended by Section 3,
Republic Act No. 6727, June 9, 1989).
•
•
•
•
•
•
Purpose of the law: assure decent living conditions of the worker
Basis of minimum wage: not exceeding 8 hrs/day
Methods employed in fixing the minimum wage:
1. Floor-wage method
- Prescribes a determinate amount that would be added
to the prevailing statutory minimum wage
2. Salary-ceiling method
- Prescribes a wage adjustment that would apply only to
employees receiving a certain denominated salary
ceiling
Minimum wage varies from region to region
Factors to be considered in fixing the minimum wage:
1. Demand for living wages
2. Wage adjustment vis-à-vis consumer price index
3. Cost of living and changes or increase therein
4. The needs of workers and their families
5. The need to induce industries to invest on the countryside
6. Improvements in the standards of living
7. The prevailing wage levels
8. Faire return of capital invested and capacity to pay the
workers
9. Effects on employment generation and family income; and
10. The equitable distribution of income and wealth along the
imperatives of economic and social development
•
ARTICLE 100. Prohibition against elimination or diminution of
benefits. – Nothing in this Book shall be construed to eliminate or in any
way diminish supplements, or other employee benefits being enjoyed at
the time of promulgation of this Code.
•
When non-diminution of benefits is not violated:
1. The action does not reduction or elimination of benefits
2. If it deducts the fair and reasonable value of facilities
3. Where an employer reduces the bonuses it used to grant its
employees
•
The grant of benefits for a long period of time may ripen into a
company practice and create a vested right upon the
employees. To be considered as such, it should have been
observed a long period of time, and must be shown to have
been consistent and deliberate.
Prohibitions on minimum wage fixed by law:
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ARTICLE 101. Payment by results. - (a) The Secretary of Labor and
Employment shall regulate the payment of wages by results, including
pakyao, piecework, and other non-time work, in order to ensure the
payment of fair and reasonable wage rates, preferably through time and
motion studies or in consultation with representatives of workers and
employers organizations.
•
•
•
•
Categories of workers paid by results:
1. Those whose time and performance are supervised by the
employer: control is over the manner as to how the work is
to be performed
2. Those whose time and performance are unsupervised by
the employer: control is over the result of the work
Piece workers – connote a laborer or worker with no fixed
salary, wages or remuneration but receiving as compensation
from his employer depending upon the work done or the result
of the said work irrespective of the amount of time employed
The compensation of workers paid by results should not be less
than the statutory minimum wage for an 8-hr work or a
proportion thereof for less than 8 hrs work
In the absence of such prescribed wage rates for piece-rate
workers, the ordinary minimum wage rates prescribed by the
RTWPB shall apply.
Chapter 3
PAYMENT OF WAGES
-
All notes and coins issued by the Bangko Sentral ng Pilipinas
are legal tender
•
•
A check, whether a manager’s or ordinary, is not a legal tender
Payment of wages in legal tender, mandatory
- Purpose: to prevent the employee from being
shortchanged and to ensure that the compensation
given could be used by the employee for any purpose
that he wants
If an employer pays the wages in a medium other than legal
tender, it will not produce the effect of payment.
- Effect: it will not discharge the employer from liability for
unpaid wages
•
•
When payment of wages by check or money order:
1. When such manner of payment is customary on the date of
the effectivity of the LC
2. When so stipulated in a CBA
3. When there is a bank or other facility for encashment within
the radius of 1 km from the workplace, provided:
a. that the employer or any of his agent does not receive
any pecuniary benefit directly or indirectly from the
arrangement,
b. that the employees are given reasonable time during
banking hours to withdraw their wages from the bank
during company time,
c. that the employee consents to such an agreement, in
the absence of a collective agreement on the matter
ARTICLE 102. Forms of payment. – No employer shall pay the wages
of an employee by means of promissory notes, vouchers, coupons,
tokens, tickets, chits, or any object other than legal tender, even when
expressly requested by the employee. Payment of wages by check or
money order shall be allowed when such manner of payment is
customary on the date of effectivity of this Code, or is necessary
because of special circumstances as specified in appropriate regulations
to be issued by the Secretary of Labor and Employment or as stipulated
in a collective bargaining agreement.
ARTICLE 103. Time of payment. – Wages shall be paid at least once
every two (2) weeks or twice a month at intervals not exceeding sixteen
(16) days. If on account of force majeure or circumstances beyond the
employers control, payment of wages on or within the time herein
provided cannot be made, the employer shall pay the wages
immediately after such force majeure or circumstances have ceased. No
employer shall make payment with less frequency than once a month.
Legal Tender – that currency which has been made suitable by law for
the purpose of tender of payment of debts.
The payment of wages of employees engaged to perform a task which
cannot be completed in two (2) weeks shall be subject to the following
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conditions, in the absence of a collective bargaining agreement or
arbitration award:
1. Actual or impending emergencies caused by fire, flood, etc
rendering payment thereat impossible
2. When the employer provides free transportation back and
forth
3. Under any other analogous circumstances, provided that
the time spent by the employees in collecting their wages
shall be considered as compensable hours of work
(1) That payments are made at intervals not exceeding sixteen (16)
days, in proportion to the amount of work completed;
(2) That final settlement is made upon completion of the work.
•
•
•
•
•
Frequency of Payment
GR: wages shall be paid not less than once every 2 weeks or
twice a month at intervals not exceeding 16 days
Exception: in cases of wages pertaining to task which cannot be
finished in 2 weeks, payment thereof shall be made at intervals
not exceeding 16 days in proportion to the amount of work
completed. Final settlement shall be made immediately upon
completion of work.
Delayed payment of wages may be excused on account of:
1. Force majeure – events which arise from legitimate or
illegitimate acts of persons other than the employer, such as
war, robbery, etc
2. Circumstances beyond control – fortuitous events
independent of human intervention, such as floods,
typhoons, earthquakes, and other natural calamities
Payment of wages should be made immediately thereafter
No work, no pay
- Exceptions:
a. Employee illegally locked out
b. Dismissal
c. Suspension
ARTICLE 104. Place of payment. – Payment of wages shall be made
at or near the place of undertaking, except as otherwise provided by
such regulations as the Secretary of Labor and Employment may
prescribe under conditions to ensure greater protection of wages.
Place of payment:
• GR: near the place of undertaking
• Exceptions:
•
•
Payment in recreational places prohibited
Payment through ATM, allowed under certain conditions
ARTICLE 105. Direct payment of wages. – Wages shall be paid
directly to the workers to whom they are due, except:
(a) In cases of force majeure rendering such payment impossible or
under other special circumstances to be determined by the Secretary of
Labor and Employment in appropriate regulations, in which case, the
worker may be paid through another person under written authority
given by the worker for the purpose; or
(b) Where the worker has died, in which case, the employer may pay the
wages of the deceased worker to the heirs of the latter without the
necessity of intestate proceedings. The claimants, if they are all of age,
shall execute an affidavit attesting to their relationship to the deceased
and the fact that they are his heirs, to the exclusion of all other persons.
If any of the heirs is a minor, the affidavit shall be executed on his behalf
by his natural guardian or next-of-kin. The affidavit shall be presented to
the employer who shall make payment through the Secretary of Labor
and Employment or his representative. The representative of the
Secretary of Labor and Employment shall act as referee in dividing the
amount paid among the heirs. The payment of wages under this Article
shall absolve the employer of any further liability with respect to the
amount paid.
•
•
GR: Wages should be paid directly to the employee
Exceptions:
1. Where the employer is authorized in writing by the
employee to pay his wages to a member of the family
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2. Where payment to another person of any part of the
employee’s wage is authorized by existing law
3. In case of death of employee
4. In case of force majeure
•
•
If a specific job was contracted by a group, payment of wages
may be coursed through the leader of the group
Payment of wages of an employee who has died: to the heirs
who should submit to the employer an affidavit attesting to their
relationship with their deceased and the fact that they are his
heirs, to the exclusion of all other persons.
agent of the employer who shall be responsible to the workers in the
same manner and extent as if the latter were directly employed by him.
•
Contracting/subcontracting – one whereby an employer
engages the services of a contractor to perform a certain work,
task or job on his account under his own responsibility free from
the control and direction of his employer in all matters except as
to the result of the work
- Not illegal per se. (refer to Arts. 106-107)
•
Requisites of valid contracting/ subcontracting:
1. The contractor or subcontractor must have a distinct and
independent business and must undertake to perform the
job, work or service on his account, under his own
responsibility, according to his own manner and method,
free from control and direction of the principal in all matters
connected with the performance of the work, except as to
the results thereof; and
2. The contractor or subcontractor must have substantial
capital or investment in the form of tools, equipment,
machineries, work premises and other materials which are
necessary in the conduct of the business
•
•
Substantial capital or investment: Php3M
Legal effect of legitimate contracting or subcontracting
: does not create an e-e relationship between himself
and the employees of the contractor
: The employees of the contractor remain the
contractor’s employees and his alone.
However, when the contractor fails to pay the wages of his
employees in accordance with the LC, the employer becomes
jointly and severally liable with his contractor for such wages “to
the extent of the work performed under the contract”
The party with whom an independent contractor deals is
solidarily liable with the latter for unpaid wages, and only to that
extent and for that purpose that the latter is considered a direct
employer.
ARTICLE 106. Contractor or subcontractor. – Whenever an employer
enters into a contract with another person for the performance of the
formers work, the employees of the contractor and of the latters
subcontractor, if any, shall be paid in accordance with the provisions of
this Code.
In the event that the contractor or subcontractor fails to pay the wages of
his employees in accordance with this Code, the employer shall be
jointly and severally liable with his contractor or subcontractor to such
employees to the extent of the work performed under the contract, in the
same manner and extent that he is liable to employees directly
employed by him.
The Secretary of Labor and Employment may, by appropriate
regulations, restrict or prohibit the contracting-out of labor to protect the
rights of workers established under this Code. In so prohibiting or
restricting, he may make appropriate distinctions between labor-only
contracting and job contracting as well as differentiations within these
types of contracting and determine who among the parties involved shall
be considered the employer for purposes of this Code, to prevent any
violation or circumvention of any provision of this Code.
There is “labor-only” contracting where the person supplying workers to
an employer does not have substantial capital or investment in the form
of tools, equipment, machineries, work premises, among others, and the
workers recruited and placed by such person are performing activities
which are directly related to the principal business of such employer. In
such cases, the person or intermediary shall be considered merely as an
•
•
•
When contracting or subcontracting is illegal:
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1. Labor-only contracting – an arrangement whereby the
contractor who does not have substantial capital or
investment in the form of tools, equipment, machineries,
and work premises, merely recruits, supplies or places
workers only, to a principal employer to perform a job, work
or activity that is directly related to the main business of the
principal employer.
• Elements:
a. The contractor supplies workers only to a principal
employer
b. The workers perform activities that are directly
related to the main business of the principal
c. The contractor does not have substantial capital or
investment to actually perform the job, work or
service under its own account or service under its
own account or responsibility.
• Legal effect
: The law establishes an e-e relationship between the
principal employer and the employees of the contractor
: The contractor is considered as a mere agent of the
principal employer, and therefore, both the principal
employer and the contractor are solidarily liable for al
rightful claims of the employees
2. Contracting out work with a “cabo”
• Cabo – refers to a person or group of persons or to a
labor group which, in the guise of a lab org, supplies
workers to an employer, with or without monetary or
other consideration, whether in the capacity of an agent
of the employer or as an ostensible independent
contractor.
3. Contracting out work through an in-house agency
• In-house agency – refers to a contractor or
subcontractor engaged in the supply of labor which is
owned, managed or controlled by the principal and
which operates solely for the principal.
4. Contracting out work that is directly related to the business
or operation of the principal by reason of a strike or lockout,
whether actual or imminent
• A criterion for determining w/n there is labor-only
contracting and contemplates employees hired through
a contractor or intermediary.
Illegal only if the job, work, or service contracted is
directly related to the business of the principal.
5. Contracting out work when not done in good faith and not
justified by the exigencies of the business and the same
results in the termination of regular employees, reduction of
work hours, or reduction or splitting of the bargaining unit
6. Contracting out work being performed by union members
when such will interfere with, restrain or coerce employment
in the exercise of their right to self-organization
• Illegal only when such will interfere with, restrain or
coerce employees in the exercise of their right to selforganization.
•
•
Other prohibited activities: (badfaith)
1. Requiring him to perform functions, which are currently
being performed by the regular employees of the principal
or of the contractor or of the subcontractor
2. Requiring him to sign as a precondition to employment or
continued employment, an antedated resignation letter, a
blank payroll; a waiver of labstand including minimum
wages and social or welfare benefits, or a quitclaim
releasing the principal contractor or subcontractor from any
liability as to payment of future claims
3. Requiring him to sign a contract fixing the period of
employment to a term shorter than the term of the contract
between the principal and the contractor or subcontractor,
unless the latter contract is divisible into phases for which
substantially different skills are required and this is made
known to the employee at the time of engagement.
ARTICLE 107. Indirect employer. – The provisions of the immediately
preceding article shall likewise apply to any person, partnership,
association or corporation which, not being an employer, contracts with
an independent contractor for the performance of any work, task, job or
project.
•
Independent contractor – a person who carries on an
independent business and undertakes the contract work on his
own account, under his own responsibility, according to his own
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manner and method, free from the control and direction of his
employer or principal in all matters connected with the
performance f the work except as to the result thereof; and has
substantial capital or investment in the form of tools, equipment,
machineries, work premises, and other materials which are
necessary in the conduct of the business.
Mere absence of bond is not a controlling factor in determining
whether a person is an independent contractor.
Contractors and subcontractors are required to register with the
DOLE. Failure to register shall give rise to the presumption that
the contractor is engaged in labor-only contraction.
Trilateral relationship – exists in legitimate labor contracting
- The principal decides the job or service to be contracted
out, while the contractor undertakes to perform the job
or service, and the workers accomplish the job or
service
•
The principal employer is
considered only an indirect
employer
The principal employer
and the contractor are
solidarily liable only for
unpaid wages
Factors determinative of independent contractorship:
1. Whether the contractor is carrying on an independent
business
2. Nature and extent of work
3. Skill required
4. Term and duration of the relationship
5. Existence of a contract for the performance of a specified
p[piece of work
6. Control and supervision of the work
7. Control of the premises
8. The duty to supply the premises, tools, appliances, material
and, labor, and the mode, manner, and terms of payment
•
Job contracting
The contractor provides
services
No e-e relationship exists
between the employees of
the contractor and the
principal employer
Control factor in an independent contractorship: confined to the
results
If an independent contractorship is not established, the
relationship would be regarded as a labor-only arrangement, in
which case, the relationship of e-e will be deemed to exist
between the principal and the employees of the contractor
o Exceptions:
1. Joint venture arrangement
2. Contract of agency
Labor-only contracting
The contractor provides
man-power only
There exists an e-e
relationship created by law
between
the
principal
employer
and
the
employees of the laboronly contractor
Employer is considered a
direct employer
The principal employer
and
the
labor-only
contractor are solidarily
liable for all the rightful
claims of the contractor’s
employees
ARTICLE 108. Posting of bond. – An employer or indirect employer
may require the contractor or subcontractor to furnish a bond equal to
the cost of labor under contract, on condition that the bond will answer
for the wages due the employees should the contractor or
subcontractor, as the case may be, fail to pay the same.
•
Purpose: intended to guarantee the payment of wages due the
employee should the contractor or subcontractor fail to pay the
same
ARTICLE 109. Solidary liability. – The provisions of existing laws to
the contrary notwithstanding, every employer or indirect employer shall
be held responsible with his contractor or subcontractor for any violation
of any provision of this Code. For purposes of determining the extent of
their civil liability under this Chapter, they shall be considered as direct
employers.
•
Purpose: intended to facilitate, if not guarantee, payment of
worker’s wages, including the statutory minimum wage
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Extent of liability of indirect employer: payment of wages
The solidarity liability of an indirect employer is limited only to
the extent of the work performed under the contract
An indirect employer cannot be held liable for:
1. Backwages
2. Separation pay
3. Damages arising from the acts or omissions of his
independent contractor
The imposition of solidary liability does not preclude an indirect
employer from seeking reimbursement from the contractor for
whatever amount he pays to the contractor’s employees.
ARTICLE 110. Worker preference in case of bankruptcy. – In the
event of bankruptcy or liquidation of an employers business, his workers
shall enjoy first preference as regards their wages and other monetary
claims, any provisions of law to the contrary notwithstanding. Such
unpaid wages and monetary claims shall be paid in full before claims of
the government and other creditors may be paid. (As amended by
Section 1, Republic Act No. 6715, March 21, 1989).
•
•
•
•
•
Applies only in case of bankruptcy or judicial liquidation of the
employer
Before the workers’ preference may be invoked, there must first
be a declaration of bankruptcy or judicial liquidation of the
employer’s business
Rationale: premised upon the very nature of a preferential right
of credit
Article 110 does can only be invoked upon the institution of
insolvency or judicial liquidation proceedings. It does not apply
to rehabilitation proceedings because a company under
rehabilitation continues to operate, hence, its assets are not up
for distribution to creditors
3 general categories:
1. Special preferred credits (Articles 2241 and 2242 of the CC)
- Constitute liens or encumbrances on the specific
property to which they relate
- Must first be discharged out of the proceeds of the
property to which they relate, before ordinary preferred
creditors may claim to any part of such proceeds
•
•
•
•
a. Claims for laborers’ wages, on the goods
manufactured or the work done
b. Claims of laborers, masons, mechanics and other
workmen, as well as architects, engineers and
contractors,
engaged
in
the
construction,
reconstruction or repair of buildings, canals or other
works, upon said buildings, canals, or other works.
2. Ordinary preferred credits (Article 2244)
- Create no liens on specific property
- They simply create rights in favor of certain creditors to
have cash and other assets of the insolvent applied in a
certain consequence or order of priority
3. Common credits (Article 2245)
Enjoy no preference
Article 110 does not constitute a lien on the property of the
insolvent debtor in favor of workers. It is just a preference of
credit in their favor – a preference in application.
Preference of credits applies only to claims which do not attach
to specific properties, while a lien attaches to a particular
property.
The following monetary claims of workers falling within the ambit
of special preferred credits are to be paid only after the taxes on
the specific property involved have been paid:
a. Claims for laborer’s wages, on good manufactured
or the work done
b. Claims of laborers, masons and other workmen,
architects, engineers and contractors, engaged in
the construction, reconstruction or repair of
buildings, canals or other works, upon said
buildings, canals or other works
Mortgage is a special preferred credits
ARTICLE 111. Attorneys fees. – (a) In cases of unlawful withholding of
wages, the culpable party may be assessed attorneys fees equivalent to
ten percent of the amount of wages recovered.
•
(b) It shall be unlawful for any person to demand or accept, in
any judicial or administrative proceedings for the recovery of
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wages, attorneys fees which exceed ten percent of the amount
of wages recovered.
Attorney’s fees may be awarded:
1. In cases of unlawful withholding of wages
2. In cases where the employee was forced to litigate with third
persons or incur expenses to protect his rights and interest
Maximum amount of AF’s: 10% of the amount of wages
recovered. 10% may be reduced if it is found to be utterly
excessive and unreasonable or when the questions involved are
neither novel nor difficult
AF’s need not necessarily be borne by the losing party. It may
be ordered deducted from the total amount due the winning
party.
Only lawyers are entitled to AF’s.
- Exception: a lawyer member of the PAO
(b) For union dues, in cases where the right of the worker or his union to
check-off has been recognized by the employer or authorized in writing
by the individual worker concerned; and
(c) In cases where the employer is authorized by law or regulations
issued by the Secretary of Labor and Employment.
•
•
Chapter 4
PROHIBITIONS REGARDING WAGES
ARTICLE 112. Non-interference in disposal of wages. – No employer
shall limit or otherwise interfere with the freedom of any employee to
dispose of his wages. He shall not in any manner force, compel, or
oblige his employees to purchase merchandise, commodities or other
property from any other person, or otherwise make use of any store or
services of such employer or any other person.
•
This article stresses the right of an employee to freely dispose of
his wages.
ARTICLE 113. Wage deduction. – No employer, in his own behalf or in
behalf of any person, shall make any deduction from the wages of his
employees, except:
(a) In cases where the worker is insured with his consent by the
employer, and the deduction is to recompense the employer for the
amount paid by him as premium on the insurance;
•
Purpose: to protect the employee from unwarranted practices
that diminish his compensation without his knowledge and
consent
Lawful deductions:
1. Insurance premiums
2. Unions dues
3. Agency fees (written authorization, not required)
4. Special assessments or extraordinary fees levied by a CB
agent against its members
5. Fair and reasonable value of facilities (there must be
voluntary acceptance by the employee)
6. Obligations of an employee with a third person (there must
be written authorization)
7. Cost of lost or damaged tools, materials or equipment
supplied by the employer to the employee in trades,
occupation or business where the practice of making
deductions is recognized
8. Due and demandable debt of an employee to his employer
9. Deductions made in compliance with writs of execution or
attachment against the employee for debts incurred for
food, shelter, clothing, and medical attendance
10. Income tax
11. Employee’s share in the premium contributions to the SSS
12. Employee’s share in the premium contributions to the
National Health Insurance Program; and
13. Employee’s share in the premium contributions to the Home
Development Mutual Fund
14. Deductions for absence or tardiness (no work, no pay)
15. Deductions for cost of uniforms (if requested or with the
consent of the employees. Otherwise, not deductible)
If the employer does not comply with its obligation to check-off
union dues and agency fees, it cannot be held liable for the
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union dues and agency fees that it failed to deduct from the
salaries of the employees.
The employer’s failure to make requisite deductions may
constitute a violation of contractual commitment for which it may
incur liability for ULP.
The authorization to check-off union dues is co-terminus with
the union affiliation or membership of the employees
The employee’s acceptance of benefits resulting from the CBA
justifies the deduction of agency fees from his salary.
3 requisites for a valid check-off of special assessments or other
extraordinary expenses:
1. Written resolution by a majority of all the members at a
general membership meeting duly called for the purpose
2. Minutes of the meeting duly recorded by the secretary of the
union and attested to by the union president, with a list of all
members present, the votes cast, and the purpose of the
special assessment; and
3. Individual written check-off authorization by the employees
concerned
- Strict compliance is required
ARTICLE 114. Deposits for loss or damage. – No employer shall
require his worker to make deposits from which deductions shall be
made for the reimbursement of loss of or damage to tools, materials, or
equipment supplied by the employer, except when the employer is
engaged in such trades, occupations or business where the practice of
making deductions or requiring deposits is a recognized one, or is
necessary or desirable as determined by the Secretary of Labor and
Employment in appropriate rules and regulations.
•
When an employer can require deposits for loss or damage:
1. When the employer is engaged in such trades, occupations
or business where the practice of making deductions or
requiring deposits is a recognized one; or
2. When necessary or desirable as determined by the
Secretary of Labor in appropriate rules and regulations
ARTICLE 115. Limitations. – No deduction from the deposits of an
employee for the actual amount of the loss or damage shall be made
unless the employee has been heard thereon, and his responsibility has
been clearly shown.
•
Conditions for effecting deductions from deposits:
1. That the employee concerned is clearly shown to be
responsible for the loss
2. That the employee is given reasonable opportunity to show
cause why deduction should not be made
3. That the amount of such deductions is fair and reasonable
and shall not exceed the actual loss or damage; and
4. The deduction from the wages of the employee does not
exceed 20% of the employee’s wages in a week.
ARTICLE 116. Withholding of wages and kickbacks prohibited. - It
shall be unlawful for any person, directly or indirectly, to withhold any
amount from the wages of a worker or induce him to give up any part of
his wages by force, stealth, intimidation, threat or by any other means
whatsoever without the workers consent.
•
Acts prohibited:
1. Withholding any amount from the wages of a worker
2. Inducing an employee to give up any part of his wages by
force, stealth, intimidation, threat or by any other means
without the worker’s consent
•
Lawful withholding:
1. To set-off an employee’s due and demandable debt to the
employer; or
2. To comply with writs of execution or attachment against the
employee for debts incurred for food, shelter, clothing and
medical attendance
ARTICLE 117. Deduction to ensure employment. – It shall be
unlawful to make any deduction from the wages of any employee for the
benefit of the employer or his representative or intermediary as
consideration of a promise of employment or retention in employment.
•
Scope of prohibition:
1. Promise of employment
2. Retention of employment
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It exercises the a technical and administrative
supervision over the RTWPB
Composition:
1. Ex-officio chairman – Secretary of DOLE
2. Ex-officio Vice Chairman – Director-General of the NWPC
3. Members:
i.
Executive Director of the NWPC
ii.
2 members from the workers sector; and
iii.
2 member from the employers sector
-
ARTICLE 118. Retaliatory measures. – It shall be unlawful for an
employer to refuse to pay or reduce the wages and benefits, discharge
or in any manner discriminate against any employee who has filed any
complaint or instituted any proceeding under this Title or has testified or
is about to testify in such proceedings.
•
Significance: freedom accorded to an employee to assert his
rights under Title II, Book 3 of the LC, without fear of retaliation.
ARTICLE 119. False reporting. – It shall be unlawful for any person to
make any statement, report, or record filed or kept pursuant to the
provisions of this Code knowing such statement, report or record to be
false in any material respect.
•
•
Records required of an employer to keep:
1. Payrolls
2. Time records of employees
3. Time records of executives
4. Records of workers paid by results
All employment records of employees shall be kept and
maintained in or about the premises of the workplace, i.e., the
branch office or establishment, where the employees concerned
are regularly assigned.
Chapter 5
WAGE STUDIES, WAGE ARRANGEMENTS, AND WAGE
DETERMINATION
ARTICLE 120. Creation of National Wages and Productivity
Commission. - There is hereby created a National Wages and
Productivity Commission, hereinafter referred to as the Commission,
which shall be attached to the Department of Labor and Employment
(DOLE) for policy and program coordination. (As amended by Republic
Act No. 6727, June 9, 1989).
•
•
NWPC – the advisory body to the President of the Philippines
and Congress on matters relating to wages, income, and
productivity.
•
The members representing the labor and management shall be
appointed by the President of the Philippines upon
recommendation of the Secretary of DOLE, on the basis of the
list of nominees submitted by the workers and employers
sectors, for a term of 5 yrs, and shall have the same rank,
emoluments, allowances, and other benefits as those prescribed
by law for labor and management representatives in the
Employees’ Compensation Commission.
ARTICLE 121. Powers and functions of the Commission. – The
Commission shall have the following powers and functions:
(a) To act as the national consultative and advisory body to the
President of the Philippines and Congress on matters relating to wages,
incomes and productivity;
(b) To formulate policies and guidelines on wages, incomes and
productivity improvement at the enterprise, industry and national levels;
(c) To prescribe rules and guidelines for the determination of appropriate
minimum wage and productivity measures at the regional, provincial, or
industry levels;
(d) To review regional wage levels set by the Regional Tripartite Wages
and Productivity Boards to determine if these are in accordance with
prescribed guidelines and national development plans;
(e) To undertake studies, researches and surveys necessary for the
attainment of its functions and objectives, and to collect and compile
data and periodically disseminate information on wages and productivity
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and other related information, including, but not limited to, employment,
cost-of-living, labor costs, investments and returns;
(f) To review plans and programs of the Regional Tripartite Wages and
Productivity Boards to determine whether these are consistent with
national development plans;
(g) To exercise technical and administrative supervision over the
Regional Tripartite Wages and Productivity Boards;
(h) To call, from time to time, a national tripartite conference of
representatives of government, workers and employers for the
consideration of measures to promote wage rationalization and
productivity; and
(i) To exercise such powers and functions as may be necessary to
implement this Act.
The Commission shall be composed of the Secretary of Labor and
Employment as ex-officio chairman, the Director-General of the National
Economic and Development Authority (NEDA) as ex-officio vicechairman, and two (2) members each from workers and employers
sectors who shall be appointed by the President of the Philippines upon
recommendation of the Secretary of Labor and Employment to be made
on the basis of the list of nominees submitted by the workers and
employers sectors, respectively, and who shall serve for a term of five
(5) years. The Executive Director of the Commission shall also be a
member of the Commission.
The Commission shall be assisted by a Secretariatto be headed by an
Executive Director and two (2) Deputy Directors, who shall be appointed
by the President of the Philippines, upon the recommendation of the
Secretary of Labor and Employment.
The Executive Director shall have the same rank, salary, benefits and
other emoluments as that of a Department Assistant Secretary, while the
Deputy Directors shall have the same rank, salary, benefits and other
emoluments as that of a Bureau Director. The members of the
Commission representing labor and management shall have the same
rank, emoluments, allowances and other benefits as those prescribed by
law for labor and management representatives in the Employees
Compensation Commission. (As amended by Republic Act No. 6727,
June 9, 1989).
•
The NWPC has the power to prescribe rules and guidelines for
the determination of appropriate minimum wage and productivity
measures at regional, provincial or industry levels. It is also
empowered to formulate policies and guidelines on wages,
incomes and productivity improvement at the enterprise,
industry and national levels.
ARTICLE 122. Creation of Regional Tripartite Wages and
Productivity Boards.- There is hereby created Regional Tripartite
Wages and Productivity Boards, hereinafter referred to as Regional
Boards, in all regions, including autonomous regions as may be
established by law. The Commission shall determine the
offices/headquarters of the respective Regional Boards.
The Regional Boards shall have the following powers and functions in
their respective territorial jurisdictions:
(a) To develop plans, programs and projects relative to wages, incomes
and productivity improvement for their respective regions;
(b) To determine and fix minimum wage rates applicable in their regions,
provinces or industries therein and to issue the corresponding wage
orders, subject to guidelines issued by the Commission;
(c) To undertake studies, researches, and surveys necessary for the
attainment of their functions, objectives and programs, and to collect
and compile data on wages, incomes, productivity and other related
information and periodically disseminate the same;
(d) To coordinate with the other Regional Boards as may be necessary
to attain the policy and intention of this Code;
(e) To receive, process and act on applications for exemption from
prescribed wage rates as may be provided by law or any Wage Order;
and
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(f) To exercise such other powers and functions as may be necessary to
carry out their mandate under this Code.
Implementation of the plans, programs, and projects of the Regional
Boards referred to in the second paragraph, letter (a) of this Article, shall
be through the respective regional offices of the Department of Labor
and Employment within their territorial jurisdiction; Provided, however,
That the Regional Boards shall have technical supervision over the
regional office of the Department of Labor and Employment with respect
to the implementation of said plans, programs and projects.
Each Regional Board shall be composed of the Regional Director of the
Department of Labor and Employment as chairman, the Regional
Directors of the National Economic and Development Authority and the
Department of Trade and Industry as vice-chairmen and two (2)
members each from workers and employers sectors who shall be
appointed by the President of the Philippines, upon the recommendation
of the Secretary of Labor and Employment, to be made on the basis of
the list of nominees submitted by the workers and employers sectors,
respectively, and who shall serve for a term of five (5) years.
Each Regional Board to be headed by its chairman shall be assisted by
a
Secretariat.
(As amended by Republic Act No. 6727, June 9, 1989).
•
RTWPB composition:
a. Chairman – regional director of the DOLE
b. Vice-chairman – regional director of the NEDA
- Regional director of DTI
c. Members – 2 from the worker’s sector
- 2 from the employers’ sector
•
Representatives of the workers and employers sector shall be
appointed by the President of the Philippines upon
recommendation of the Secretary of DOLE, and shall serve a
term of 5 yrs
The RTWPB exercises technical supervision over the regional
office of the DOLE with respect to the implementation of plans,
programs and projects relative to wages, incomes and
productivity improvement for their respective regions.
•
•
•
Minimum wage fixing is a function of the RTWPB
RTWPB has no power to promulgate rules and guidelines for
the determination of appropriate minimum wage and productivity
measures.
ARTICLE 123. Wage Order. – Whenever conditions in the region so
warrant, the Regional Board shall investigate and study all pertinent
facts; and based on the standards and criteria herein prescribed, shall
proceed to determine whether a Wage Order should be issued. Any
such Wage Order shall take effect after fifteen(15) days from its
complete publication in at least one (1) newspaper of general circulation
in the region.
In the performance of its wage-determining functions, the Regional
Board shall conduct public hearings/consultations, giving notices to
employees and employers groups, provincial, city and municipal officials
and other interested parties.
Any party aggrieved by the Wage Order issued by the Regional Board
may appeal such order to the Commission within ten (10) calendar days
from the publication of such order. It shall be mandatory for the
Commission to decide such appeal within sixty (60) calendar days from
the filing thereof.
The filing of the appeal does not stay the order unless the person
appealing such order shall file with the Commission, an undertaking with
a surety or sureties satisfactory to the Commission for the payment to
the employees affected by the order of the corresponding increase, in
the event such order is affirmed. (As amended by Republic Act No.
6727, June 9, 1989).
•
•
A wage order takes effect after 15 days from its complete
publication in at least 1 newspaper of general circulation in the
region
Any party aggrieved by the Wage Order may appeal such order
to the NWPC within 10 calendar days from publication of such
order.
ARTICLE 124. Standards/Criteria for minimum wage fixing. – The
regional minimum wages to be established by the Regional Board shall
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be as nearly adequate as is economically feasible to maintain the
minimum standards of living necessary for the health, efficiency and
general well-being of the employees within the framework of the national
economic and social development program. In the determination of such
regional minimum wages, the Regional Board shall, among other
relevant factors, consider the following:
(a) The demand for living wages;
(b) Wage adjustment vis–vis the consumer price index;
(c) The cost of living and changes or increases therein;
(d) The needs of workers and their families;
(e) The need to induce industries to invest in the countryside;
(f) Improvements in standards of living;
(g) The prevailing wage levels;
(h) Fair return of the capital invested and capacity to pay of employers;
(i) Effects on employment generation and family income; and
(j) The equitable distribution of income and wealth along the imperatives
of economic and social development.
The wages prescribed in accordance with the provisions of this Title
shall be the standard prevailing minimum wages in every region. These
wages shall include wages varying with industries, provinces or localities
if in the judgment of the Regional Board, conditions make such local
differentiation proper and necessary to effectuate the purpose of this
Title.
Any person, company, corporation, partnership or any other entity
engaged in business shall file and register annually with the appropriate
Regional Board, Commission and the National Statistics Office, an
itemized listing of their labor component, specifying the names of their
workers and employees below the managerial level, including learners,
apprentices and disabled/handicapped workers who were hired under
the terms prescribed in the employment contracts, and their
corresponding salaries and wages.
Where the application of any prescribed wage increase by virtue of a
law or wage order issued by any Regional Board results in distortions of
the wage structure within an establishment, the employer and the union
shall negotiate to correct the distortions. Any dispute arising from wage
distortions shall be resolved through the grievance procedure under
their collective bargaining agreement and, if it remains unresolved,
through voluntary arbitration. Unless otherwise agreed by the parties in
writing, such dispute shall be decided by the voluntary arbitrators within
ten (10) calendar days from the time said dispute was referred to
voluntary arbitration.
In cases where there are no collective agreements or recognized labor
unions, the employers and workers shall endeavor to correct such
distortions. Any dispute arising therefrom shall be settled through the
National Conciliation and Mediation Board and, if it remains unresolved
after ten (10) calendar days of conciliation, shall be referred to the
appropriate branch of the National Labor Relations Commission (NLRC).
It shall be mandatory for the NLRC to conduct continuous hearings and
decide the dispute within twenty (20) calendar days from the time said
dispute is submitted for compulsory arbitration.
The pendency of a dispute arising from a wage distortion shall not in any
way delay the applicability of any increase in prescribed wage rates
pursuant to the provisions of law or wage order.
As used herein, a wage distortion shall mean a situation where an
increase in prescribed wage rates results in the elimination or severe
contraction of intentional quantitative differences in wage or salary rates
between and among employee groups in an establishment as to
effectively obliterate the distinctions embodied in such wage structure
based on skills, length of service, or other logical bases of differentiation.
All workers paid by result, including those who are paid on piecework,
takay, pakyaw or task basis, shall receive not less than the prescribed
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wage rates per eight (8) hours of work a day, or a proportion thereof for
working less than eight (8) hours.
3. If the grievance machinery fails to settle the dispute, the
matter shall be threshed out through voluntary
arbitration
All recognized learnership and apprenticeship agreements shall be
considered automatically modified insofar as their wage clauses are
concerned to reflect the prescribed wage rates. (As amended by
Republic Act No. 6727, June 9, 1989).
•
-
-
•
•
Wage distortion
A situation where an increase in the prescribed wage rates
results in the elimination or severe contraction of intentional
quantitative differences in wage or salary rates between and
among employee groups in an establishment as to effectively
obliterate the distinctions embodied in such wage structure
based on skills, length of service, or other logical bases of
differentiation
For wage distortion to exist, severe contraction is enough
It presupposes an increase in the compensation of the lower
ranks in an office hierarchy without a corresponding raise for
higher-tiered employees in the same region of the country,
resulting in the elimination or the severe contradiction of the
distinction between the two groups.
Elements:
a. An existing hierarchy of positions with corresponding salary
rates
b. A significant change in the salary arte of a lower pay class
without a concomitant increase in the salary rate of a higher
one
c. The elimination or severe contraction of the distinction
between the two levels; and
d. The existence of the distortion in the same region of the
country
Procedure for correction of Wage Distortion:
a. In Unionized Establishments:
1. The employer and the union shall negotiate to correct
the distortions
2. If the negotiations fail, the matter shall be brought to the
grievance machinery under their CBA
b. In Non-Unionized Establishment:
1. The employers and the workers shall negotiate to
correct such distortions
2. If negotiations fail, the matter shall be brought to the
NCMB for conciliation
3. If condition fails, the dispute shall be referred to the
appropriate branch of the NLRC for compulsory
arbitration
•
Employers are obliged to file and register annually with the
appropriate RTWPB, NWPC and the NSO an itemized listing of
their workers and employees below the managerial level,
including learners, apprentices, and disabled/handicapped
workers and their corresponding salaries and wages.
ARTICLE 125. Freedom to bargain. – No wage order shall be
construed to prevent workers in particular firms or enterprises or
industries from bargaining for higher wages with their respective
employers.
(As amended by Republic Act No. 6727, June 9, 1989).
•
As a matter of policy, the State promotes collective bargaining
as the primary mode of settling wages and other terms and
conditions of employment.
ARTICLE 126. Prohibition against injunction. No preliminary or
permanent injunction or temporary restraining order may be issued by
any court, tribunal or other entity against any proceedings before the
Commission or the Regional Boards. (As amended by Republic Act No.
6727, June 9, 1989).
•
Reason: to enable the NWPC and the RTWPB to discharge
their functions smoothly, particularly in wage fixing which
deserves preferential consideration.
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ARTICLE 127. Non-diminution of benefits. – No wage order issued by
any regional board shall provide for wage rates lower than the statutory
minimum wage rates prescribed by Congress. (As amended by Republic
Act No. 6727, June 9, 1989).
•
•
•
The power of the RTWPB to determine and fix minimum wage is
a mere delegated power, and therefore, it should be exercised
within the limits of its authority.
It cannot set a wage rate lower than that prescribed by
Congress
It can, however, order that the minimum wages fixed by it be
extended not only to minimum wage earners but also to those
who are already receiving more than the minimum up to sa
certain denominated ceiling.
Chapter 6
ADMINITRATION AND ENFORCEMENT
ARTICLE 128. Visitorial and enforcement power.- (a) The Secretary
of Labor and Employment or his duly authorized representatives,
including labor regulation officers, shall have access to employers
records and premises at any time of the day or night whenever work is
being undertaken therein, and the right to copy therefrom, to question
any employee and investigate any fact, condition or matter which may
be necessary to determine violations or which may aid in the
enforcement of this Code and of any labor law, wage order or rules and
regulations issued pursuant there to.
(b) Notwithstanding the provisions of Articles 129 and 217 of this Code
to the contrary, and in cases where the relationship of employeremployee still exists, the Secretary of Labor and Employment or his duly
authorized representatives shall have the power to issue compliance
orders to give effect to the labor standards provisions of this Code and
other labor legislation based on the findings of labor employment and
enforcement officers or industrial safety engineers made in the course of
inspection. The Secretary or his duly authorized representatives shall
issue writs of execution to the appropriate authority for the enforcement
of their orders, except in cases where the employer contests the findings
of the labor employment and enforcement officer and raises issues
supported by documentary proofs which were not considered in the
course of inspection. (As amended by Republic Act No. 7730, June 2,
1994).
An order issued by the duly authorized representative of the Secretary
of Labor and Employment under this Article may be appealed to the
latter. In case said order involves a monetary award, an appeal by the
employer may be perfected only upon the posting of a cash or surety
bond issued by a reputable bonding company duly accredited by the
Secretary of Labor and Employment in the amount equivalent to the
monetary award in the order appealed from. (As amended by Republic
Act No. 7730, June 2, 1994).
(c) The Secretary of Labor and Employment may likewise order
stoppage of work or suspension of operations of any unit or department
of an establishment when non-compliance with the law or implementing
rules and regulations poses grave and imminent danger to the health
and safety of workers in the workplace. Within twenty-four hours, a
hearing shall be conducted to determine whether an order for the stop
page of work or suspension of operations shall be lifted or not. In case
the violation is attributable to the fault of the employer, he shall pay the
employees concerned their salaries or wages during the period of such
stoppage of work or suspension of operation.
(d) It shall be unlawful for any person or entity to obstruct, impede, delay
or otherwise render ineffective the orders of the Secretary of Labor and
Employment or his duly authorized representatives issued pursuant to
the authority granted under this Article, and no inferior court or entity
shall issue temporary or permanent injunction or restraining order or
otherwise assume jurisdiction over any case involving the enforcement
orders issued in accordance with this Article.
(e) Any government employee found guilty of violation of, or abuse of
authority, under this Article shall, after appropriate administrative
investigation, be subject to summary dismissal from the service.
(f) The Secretary of Labor and Employment may, by appropriate
regulations, require employers to keep and maintain such employment
records as may be necessary in aid of his visitorial and enforcement
powers under this Code.
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•
•
-
•
-
Powers of the Secretary of Labor and Employment:
1. Visitorial Power
2. Enforcement Power
3. Power to order suspension or stoppage of operations for
failure to comply with health and safety standards.
The Visitorial Power:
a. Inspect the records and premises of an employer
b. Copy pertinent records or documents
c. Question any employee; and
d. Investigate any fact, condition or matter for the purpose of
determining whether an employer is complying with labor
standards
The visitorial power can be exercised at any time of the day or
night, whether work is being undertaken therein.
It can be done on a routine bases, i.e., routine inspection or
upon request of an employee, i.e., complaint inspection
The Enforcement Power
To issue compliance orders on the basis of findings of Labor
Standards and Welfare Officers (LSWO) made in the course of
inspection, that violation of labor standards has been committed.
Writs of execution may be issued to enforce their orders
Intended to provide the workers to immediate access to their
rights and benefits without being inconvenienced by arbitration
or litigation processes that prove to be not only nerve-wracking
but financially burdensome in the long run.
1.
2.
-
•
Limitations on the exercise of enforcement power:
1. Contest the findings of the LSWO
2. Raise issues supported by documentary proofs which were
not considered in the course of inspection
•
Visitorial and Enforcement powers are not restricted by the
amount involved.
•
-
Power to order suspension or stoppage of operations
Exercised where the condition obtaining in the workplace pose
grave and imminent danger to the health and safety of workers
in the workplace
In imminent danger cases, the employer may make the
necessary rectification at the plant-level within 24 hours from the
date of inspection
In non-imminent danger cases, the LSWO shall determine the
reasonable period of compliance depending on the gravity of the
hazards.
Within 24 hrs from the issuance of the order, a hearing shall be
conducted with the assistance of the LSWO concerned to
determine whether the order shall be lifter or not.
The proceedings shall be terminated within 72 hours and a copy
of the order of resolution shall be immediately furnished the
Secretary of DOLE
If the stoppage or suspension is attributable to the fault of the
employer, the employees are entitled to their salaries or wages
during the period of such suspension of operations.
-
•
•
•
The visitorial and enforcement powers given to the Secretary of
DOLE or his duly authorized representatives is relevant to and
exercisable over establishments, not over individual employees
because what is sought to be achieved by its exercise is the
observance of, and/or compliance by, such establishment with
labor standards laws and regulations.
In case of an award rendered in the exercise of visitorial and
enforcement powers, the entire employees who are still working
with said establishments should benefit therefrom even if they
did not sign the complaint or request for inspection.
Remedies:
Motion for reconsideration , to be filed within 7 calendar days
from receipt of the order
Appeal to the Secretary of DOLE, to be filed within 10 calendar
days from receipt of the order
A motion for reconsideration filed beyond the 7-day
reglementary period shall be treated as an appeal if filed within
the 10-day period for appeal, but subject to the requirements for
the perfection of an appeal.
-
ARTICLE 129. Recovery of wages, simple money claims and other
benefits. – Upon complaint of any interested party, the Regional
Director of the Department of Labor and Employment or any of the duly
authorized hearing officers of the Department is empowered, through
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summary proceeding and after due notice, to hear and decide any
matter involving the recovery of wages and other monetary claims and
benefits, including legal interest, owing to an employee or person
employed in domestic or household service or househelper under this
Code, arising from employer-employee relations: Provided, That such
complaint does not include a claim for reinstatement: Provided further,
That the aggregate money claims of each employee or househelper
does not exceed Five thousand pesos (P5,000.00). The Regional
Director or hearing officer shall decide or resolve the complaint within
thirty (30) calendar days from the date of the filing of the same. Any sum
thus recovered on behalf of any employee or househelper pursuant to
this Article shall be held in a special deposit account by, and shall be
paid on order of, the Secretary of Labor and Employment or the
Regional Director directly to the employee or househelper concerned.
Any such sum not paid to the employee or househelper because he
cannot be located after diligent and reasonable effort to locate him
within a period of three (3) years, shall be held as a special fund of the
Department of Labor and Employment to be used exclusively for the
amelioration and benefit of workers.
•
Any decision or resolution of the Regional Director or hearing officer
pursuant to this provision may be appealed on the same grounds
provided in Article 223 of this Code, within five (5) calendar days from
receipt of a copy of said decision or resolution, to the National Labor
Relations Commission which shall resolve the appeal within ten (10)
calendar days from the submission of the last pleading required or
allowed under its rules.
Basis
The Secretary of Labor and Employment or his duly authorized
representative may supervise the payment of unpaid wages and other
monetary claims and benefits, including legal interest, found owing to
any employee or househelper under this Code. (As amended by Section
2, Republic Act No. 6715, March 21, 1989).
•
Article 129 confers upon the Regional Director of the DOLE the
authority to hear and decide claims for unpaid wages and other
monetary claims and benefits filed by an employee or person
employed in domestic or household service, whose employment
has been and doers not seek reinstatement anymore.
-
•
-
Requisites:
1. The claim is purely for recovery of unpaid wages and other
monetary claims and benefits
2. The claim is filed by an employee, househelper or person
employed on domestic or household service
3. The employee, househelper or person employed in
domestic or household service has already been separated
from service and does not seek reinstatement anymore
4. The aggregate money claims of each claimant does not
exceed 5k
If the following requisites are not complied with, the case will fall
within the exclusive jurisdiction of the Arbitration Branch of the
NLRC.
Remedy:
Appeal to the NLRC within 5 calendar days from receipt of the
decision
Subject
matter
Workers
involved
Amount
involved
Appellate
body
Period to
appeal
Adjudicatory
Power
Complaint filed by
the employee
Pure
money
claims
Only to employees
who have already
been
separated
from service and
do
not
seek
reinstatement
Not exceeding 5k
Enforcement
Power
Inspection result
Extends
to
violations
of
occupational health
and
safety
standards
Only to employees
who are still in
service
NLRC
Not
limited
by
amount involved
Secretary of DOLE
Within 5 calendar
days from receipt
Within 10 calendar
days from receipt
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Book Four: Health, Safety and Social Welfare Benefits
Title I: Medical, Dental and Occupational Safety
Chapter I: Medical and Dental Services
Art. 156. First-aid treatment: Every employer shall keep in his
establishment such first-aid medicines and equipment as the
nature and conditions of work may require, in accordance with
such regulations as the Department of Labor and Employment
shall prescribe.
The employer shall take steps for the training of a sufficient
number of employees in first-aid treatment.
1. First Aid Treatment
• Adequate, immediate and necessary medical and dental
attention or remedy given in case of injury or sudden illness
suffered by a worker during employment, irrespective of
whether or not such injury or illness is work-connected
before more extensive medical and/or dental treatment can
be secured.
• Does not include continued treatment or follow-up
treatment.
2. Scope of the Law
• The obligation to keep first aid medicines, equipment and
facilities applies to all employers, regardless of the number
of employees they employ.
Art. 157. Emergency medical and dental services. It shall be the
duty of every employer to furnish his employees in any locality
with free medical and dental attendance and facilities consisting of:
The services of a full-time registered nurse when the number of
employees exceeds fifty (50) but not more than two hundred (200)
except when the employer does not maintain hazardous
workplaces, in which case, the services of a graduate first-aider
shall be provided for the protection of workers, where no
registered nurse is available. The Secretary of Labor and
Employment shall provide by appropriate regulations, the services
that shall be required where the number of employees does not
exceed fifty (50) and shall determine by appropriate order,
hazardous workplaces for purposes of this Article;
The services of a full-time registered nurse, a part-time physician
and dentist, and an emergency clinic, when the number of
employees exceeds two hundred (200) but not more than three
hundred (300); and
The services of a full-time physician, dentist and a full-time
registered nurse as well as a dental clinic and an infirmary or
emergency hospital with one bed capacity for every one hundred
(100) employees when the number of employees exceeds three
hundred (300).
In cases of hazardous workplaces, no employer shall engage the
services of a physician or a dentist who cannot stay in the
premises of the establishment for at least two (2) hours, in the case
of those engaged on part-time basis, and not less than eight (8)
hours, in the case of those employed on full-time basis. Where the
undertaking is non-hazardous in nature, the physician and dentist
may be engaged on retainer basis, subject to such regulations as
the Secretary of Labor and Employment may prescribe to insure
immediate availability of medical and dental treatment and
attendance in case of emergency. (As amended by Presidential
Decree NO. 570-A, Section 26)
1. The Required Medical and Dental Services
Shall depend upon the number of employees and the nature of
the workplace.
•
•
•
•
10 to 50 workers
- Graduate First aider
51 to 200 workers
- Full-time registered
nurse (A full-time first aider will suffice if workplace is nonhazardous and a nurse is not available)
201 to 300 workers
- full-time registered
nurse
Part-time
physician
Part-time
dentist
Emergency
clinic (regardless of nature of undertaking)
Over 300 workers
o Hazardous Workplace
Full-time
registered nurse
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- Full-time physician
- Full-time dentist
- Dental Clinic
- Infirmary or
emergency hospital with 1 bed capacity for every 100
workers
o
Non-hazardous Workplace
nurse
- Full-time registered
-
Part-time
-
Part-time
physician
dentist
2. Concept of Part-time Service
• At least 2 hours stay in the premised in a day.
• If establishment has more than 1 workshift, 2-hour stay shall
be devoted to the workshift with greater number of workers,
subject however to call during other shifts in case of
emergency.
3. Concept of Full-time Service
• At least 8 hours stay in the premises in a day. (Subject to
the same qualification as Part-time service in case of
multiple workshifts in a day)
4. Hazardous Workplace
• Nature of the work exposes the workers to dangerous
environmental elements, contaminants or work
conditions including ionizing radiation, chemicals, fire,
flammable substances, noxious components and the
like;
• Construction work, logging, firefighting, mining, quarrying,
blasting, stevedoring, dock work, deep sea fishing and
mechanical farming;
• Manufacture or handling of explosive and other
pyrotechnical products;
• Use or exposed to heavy or power-driven machinery or
equipment;
• Workers use or are exposed to power-driven tools.
Art. 158. When emergency hospital not required. – The requirement
for an emergency hospital or dental clinic shall not be applicable in
case there is a hospital or dental clinic which is accessible from
the employer’s establishment and he makes arrangement for the
reservation therein of the necessary beds and dental facilities for
the use of his employees.
1. Alternative to an Emergency Hospital or Dental Clinic
• An employer need not put up an emergency hospital
or dental clinic in the workplace if:
o There is a hospital or dental clinic withing a 5
km radius away from the workplace in an
urban area; or one which can be reached by
motor vehicle within 25 mins of travel if
workplace located in a rural area;
o The employer has facilities readily available
to transport a worker in case of an
emergency;
o Employer has a written contract with the
hospital or dental clinic for the use thereof in
the treatment of workers in case of an
emergency
• This does not relieve an employer from maintaining
an emergency treatment room.
Art. 159. Health program. – The physician engaged by an employer
shall, in addition to his duties under this Chapter, develop and
implement a comprehensive occupational health program for the
benefit of the employees of his employer.
1. Objectives of an Occupational Health Program
The main objectives of an occupational health program are:
a. Assess the worker’s physical, emotional and
psychological assets as well as his liabilities in order
to facilitate his proper placement and ensure the
suitability of individuals according to their physical
capacities, mental abilities and emotional make-up in
work which they can perform with an acceptable
degree of efficiency without endangering their own
health and safety and that of their co-workers;
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b.
Protect employees against health hazards in their
working environment in order to prevent occupational
as well as non-occupational diseases;
c. Provision for first-aid, emergency services and
treatment depending on the nature of the industry;
d. Assure adequate medical care of ill and injured
workers;
e. Encourage personal health maintenance and
physical fitness and proper nutrition practices; and
f. Provide guidance, information and services for family
planning programs.
The Health Program shall include the following activities:
a. Maintenance of a healthful work environment by
requiring occupational health personnel to conduct
regular appraisal of sanitation conditions, periodic
inspection of premises, including all facilities therein,
and evaluate the working environment in order to
detect and appraise occupational health hazards and
environmental conditions affecting comfort and job
efficiency;
b. Health Examinations: Entrance; Periodic; Special
examination; Transfer examination; Separation
examination.
c. Diagnosis and treatment of all injuries and
occupational and non-occupational diseases;
d. Immunization programs; and
e. Accurate and complete medical records of each
worker starting from his first examination or
treatment, which must be under the exclusive
custody and control of the occupational health
personnel. Such records shall be made available to
the worker or his duly authorized representative and
~ not be used for discriminatory purpose or in any
other manner prejudicial to his interest.
f.
Health Education and Counseling in which the
occupational health and safety personnel shall
cooperate with the supervisors in imparting
appropriate health and safety information to
employees, such as health hazards and proper
precautions, habits of cleanliness, orderliness, safe
work practices, use and maintenance of available
personal protective clothing and devices, and the use
of available health services and facilities; and
g. Nutrition program which shall be under the dietician
and supervised by a physician if the latter is present.
2. Duties of a Company Physician
Aside from providing an emergency medical service, a
company physician is bound to perform the following duties:
a. Conduct pre-employment medical exam for free, for
the proper selection and placement of workers;
b. Conduct annual physical examination of workers for
free;
c. Collaborate closely with the safety and technical
personnel of the establishment to assure selection
and placement of workers from the standpoint of
physical, mental, physiological and psychological
suitability, including investigation of accidents where
the probable causes are exposure to occupational
health hazards;
d. Develop and implement a comprehensive
occupational health and safety program for the
employees of the establishment. An annual report
describing the health program and the
implementation thereof should be submitted to the
Bureau of Working Conditions;
e. Continually monitor the work environment for health
hazards through periodic inspection of the
workplace;
f. Prevent diseases or injury in the workplace by
establishing proper medical supervision over
substances used, processes, and work environment;
g. Conserve the health of the workers through physical
examinations, proper advice for placement and
health education;
h. Provide medical and surgical care to restore health
and earning capacity of injured workers;
i. Maintain and analyze records of all medical cases
and to prepare and submit to the employer annual
medical reports, using form DOLE/BWC/OH-47, as
required by this Standards;
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j.
k.
l.
Conduct studies on occupational health within his
means and resources;
Act as adviser to management and labor on all
health matters;
And report directly to top management in order to be
effective.
3. Duties of the Company Nurse
The duties and functions of the nurse are as follows:
a. In the absence of a physician, to organize and
administer a health service program integrating
occupational safety, otherwise, these activities of the
nurse shall be in accordance with the physician;
b. Provide nursing care to injured or ill workers;
c. Participate in health maintenance examination. If a
physician is not available, to perform work activities
which are within the scope allowed by the nursing
profession, and if more extensive examinations are
needed, to refer the same to a physician;
d. Participate in the maintenance of occupational health
and safety by giving suggestions in the improvement
of working environment affecting the health and wellbeing of the workers; and
e. Maintain a reporting and records system, and, if a.
physician is not available, prepare and submit an
annual medical report, using form
DOLE/BWC/HSD/OH-47, to the employer, as
required by this Standards.
4. Duties of the Company Dentist
These shall be in accordance with the Standards prescribed
by the Bureau of Dental Health Services of the Department
of Health.
5. Duties of the Company First Aider
a. Give immediate temporary treatment in case of injury
or illness, before the services of a physician
becomes available. If the case needs a physician the
first-aider shall immediately call or refer the injured to
one;
b.
c.
Participate in the maintenance of occupational
safety and health programs, if a member of the
Safety Committee; and
Maintain medical services and facilities.
6. Duties of the Employer
With regard to occupational health, these are the duties of
the employer:
a. Establish in his workplace occupational. health
services to provide a healthful place of work;
b. Adopt and implement a comprehensive health
program for his workers;
c. Enter into a contract with hospitals or dental clinics, if
these are not available in his workplace; and
d. Maintain a health record of his programs and
activities and submit an annual medical report, using
form DOLE/BWC/HSD/OH-47, to the Regional Labor
Office concerned, copy furnished the Bureau of
Working Conditions on or before the last day of
March of the year following the covered period.
7. Physical Examination
All workers, irrespective of age and sex, shall undergo a
complete and thorough physical examination, free of charge:
a. before entering employment for the first time;
b. periodically, or at such intervals as may be
necessary on account of the conditions or risks
involved in the work;
c. when transferred or separated from employment;
and
d. when injured or ill.
Purpose of Pre-employment Physical Examination:
• To determine the physical condition of the
prospective employee at the time of hiring
• To prevent the placement of a worker on a job
where, through some physical or mental defects, he
may be dangerous to his fellow workers or to
property.
• Only persons who are medically fit shall be
employed in occupations where the risk to health of
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workers is due to toxic substances they handle, or of
the work environment.
Periodic Annual Medical Examinations:
• Conducted in order to follow-up previous findings
• To allow early detection of occupational and nonoccupational diseases
• To determine the effect of exposure to health
hazards.
• When occupational diseases have been detected
and the continued employment of the worker may
jeopardize his health – his employment shall be
discontinued until after his recovery.
• If circumstances so permit, worker may be given
some other job consistent with his state of health and
which will not impede or retard his recovery.
Special Examinations
• Required if there is undue exposure to health
hazards, such as lead, mercury, hydrogen sulfide,
sulfur dioxide, nitroglycerin, nitroglycol, and other
similar substances.
Return to Work Examination
• Conducted to detect if the worker is still contagious
and to determine if the worker is fit to return to work.
Workers hired for a specific job shall not be transferred to
another until they have been examined by the physician and
certified that such transfer is medically advisable.
An employee leaving the company shall be examined by the
physician:
• to determine if he is suffering from an occupational
disease, or
•
to determine whether he is suffering from any injury
or illness not completely healed, or
• to determine whether he has sustained an injury
8. Medical and Dental Records
• Maintain a record of all medical examinations,
treatments and medical activities undertaken, and
submit reports containing such information as the
Bureau of Working Conditions may require from time
to time.
Art. 160. Qualifications of health personnel – The physicians,
dentists and nurses employed by employers pursuant to this
Chapter shall have the necessary training in industrial medicine
and occupational safety and health. The Secretary of Labor and
Employment, in consultation with industrial, medical, and
occupational safety and health associations, shall establish the
qualifications, criteria and conditions of employment of such
health personnel.
1. Minimum Qualifications of Health Personnel
a. First Aider
i. Able to read and write;
ii. Completed a course in first aid;
iii. Duly certified by the Philippine National Red
Cross or by any other org accredited by the
same
b. Nurse
i. Must have passed the exam given by Board
of Examiners (board exams)
ii. Duly licensed to practice nursing in the
Philippines
iii. With at least 50 hours of training in
occupation nursing conducted by the DOH,
the Institute of Public Health of UP, or by any
organization accredited by the former.
c. Physician
i. Must have passed the Board Exams;
ii. Licensed to practice medicine in the Phils;
iii. A graduate of a training course in
occupational medicine conducted by the
Bureau of Working Conditions, the Institute
of Public Health of UP, or any duly
accredited organization
d. Dentist
i. Passed the Board Exams;
ii. Licensed to practice dentistry in the Phils;
iii. Completed a training course in Dental
Services of the DOH or organization duly
accredited by the former.
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2. If number of workers in hazardous workplace >2,000 (or
if non-hazardous workplace; >3,000 workers): higher
degree of qualification such as diploma or Master’s degree
on Occupational Health or Industrial Health or its equivalent
is required.
Art. 161. Assistance of employer – It shall be the duty of any
employer to provide all the necessary assistance to ensure the
adequate and immediate medical and dental attendance and
treatment to an injured or sick employee in case of emergency.
1. Duty to Provide Assistance:
Provide free emergency medical and dental services and
facilities. (Self explanatory provision)
Chapter II
OCCUPATIONAL HEALTH AND SAFETY
Art. 162. Safety and health standards. The Secretary of Labor and
Employment shall, by appropriate orders, set and enforce
mandatory occupational safety and health standards to eliminate
or reduce occupational safety and health hazards in all workplaces
and institute new, and update existing, programs to ensure safe
and healthful working conditions in all places of employment.
1. Purpose of the Law
• To protect every worker against the dangers of
injury, sickness or death through safe and healthy
working conditions, thereby assuring the
conservation of valuable manpower resources and
the prevention of loss or damage to lives and
properties.
2. Coverage
• Covers all establishments, workplaces and other
undertakings, including agricultural enterprises,
whether operating for profit or not.
• Exceptions:
o Engaged in land, sea and air transportation,
except their garages, dry-docks, hangars,
maintenance and repair shops and offices;
o Residential places exclusively devoted to
dwelling purposes; and
o Activities of a lessee regarding safety of
mining installations, surface or underground,
within the mining claim or lease, including
mine safety, mineral conservation and
problem of pollution in establishments or
workplaces falling under “Mining Industry” as
classified by the NEDA.
3. Duty to Observe Safety and Health Standards
a. Duty of Employers:
i. Keep and maintain workplace free from work
hazards likely to cause physical harm to
workers or damage to property;
ii. Give complete job safety instructions to all his
workers, especially to those entering the job for
the first time, including those relating to the
familiarization with their work environment,
hazards to which the workers are exposed to
and steps taken in case of emergency;
iii. Provide only approved devices and equipment
in his workplace.
b. Duty of Employees:
i. Cooperate with their employer in carrying out
the occupational safet and health standards;
ii. Report to the supervisor any work hazard they
may discover in the workplace;
iii. Make proper use of all safeguards and safety
devices furnished to them by their employer.
c. Duty of Third Parties:
Any person, including builders or contractors, who visits,
builds, innovates or installs devices in establishments or
workplaces shall comply with the provisions of this Rule
and all regulations issued by the employer in
compliance with the provisions of this Rule and other
subsequent issuances of the Secretary of Labor and
Employment.
4. Suspension of Rules
Any part of these Rules may be temporarily suspended by the
Secretary of Labor upon application of employer for the
following reasons: (Suspension shall not be longer than the
period needed by the employer to comply with the rule, or 1
year, whichever is shorter, renewable for 1 more year, subject to
revocation or shortening by the Secretary)
a. Unavailability of professional or technical personnel or
material and equipment needed to comply with the rule;
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b. Necessary construction or alteration of the prescribed
facilities cannot be completed on the effectivity date of
the rule;
c. If the employer is participating in experiments or studies
approved or conducted by the Bureau of Working
Conditions designed to demonstrate new techniques to
safeguard the safety and health or workers.
5. Variation Order
If there shall be practical difficulty or unnecessary hardship in
complying with the requirements of any rule or provision of this
Standards, the Secretary, upon the recommendation of the
Director, may issue an order allowing a variation in complying
with such requirements, provided that the purpose of such rule
or provision is substantially served and the safety and health of
the workers remain ensured.
A variation order shall stipulate the conditions under which the
variation is permitted and shall be applicable and effective only
to the particular employer and operations covered by the Order.
A variation order shall remain in effect until revoked by the
Secretary.
6. Safety Committee
All establishments are required to have a Safety Committee,
organized within 1 month from the date the business starts
and must reorganize every January of each year.
a. Duties of the Safety Committee:
i. Plans and develops accident prevention
programs for the establishment.
ii. Directs the accident prevention efforts of the
establishment in accordance with the safety
programs safety performance and government
regulations in order to prevent accidents from
occurring in the workplace.
iii. Conducts safety meetings at least once a
month.
iv. Reviews reports of inspection, accident
investigations and implementation of program.
v. Submits reports to the manager on its meetings
and activities.
vi. Provides necessary assistance to government
inspecting authorities in the proper conduct of
their activities such as the enforcement of the
provisions of this Standards.
vii. Initiates and supervises safety training for
employees.
b. Types of Safety Committees:
Type A – Total workforce of over 400 workers.
Composed of the following:
Chairman – The manager or his authorized
representative who must be a top
operating official
Members – Two Department heads
8
2 workers
8
The Company Physician
Secretary – The Safety Man
Type B – Total workforce of 201 to 400 workers.
Chairman
The
Manager or his duly authorized
representative who
must be a top
recruiting official
Members
1
supervisor
1
worker (must be union member, if
organized)
Company physician or company
nurse
Secretary
The
Safety Man
Type C – 100 to 200 workers; composed of:
Chairman
The
manager or authorized
representative
Members
1
Foreman
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1
worker (Union member, if
organized)
Secretary
To be
appointed by the Chairman
Type D – less than 100 workers; composed of:
Chairman
Manager
Members
1
Foreman
1
worker (Union, if organized)
Secretary
To be
appointed by the Chairman
Type E (Joint Committee) – Safety Committees of
different establishments housed under one building;
composed of:
Chairman
Chairman of an established
committee
Members
supervisors from 2 different
-
2
establishments
1
Secretary
To be
appointed by the Chairman
c. Other types of Safety Organizations:
Subject to the approval of Secretary of Labor and
Employment or his duly appointed representative.
i. Line Type – A form of organization where the
general manager or head of the establishment
directs the health and safety programs and
assumes overall responsibility for the safety in
the establishment. He in turn delegates the
application of health and safety programs to
plant personnel occupying line positions.
ii. Staff Type – Staff safety organization or safety
engineer type consists of a line organization
'''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''
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with specialized personnel employed to advise
and assist management in all matters of safety.
Said personnel are responsible to the top
executive exercising staff functions, serve all
departments in an advisory capacity and
supervise the application of the health and
safety program in the workplace.
d. Term of Office:
Chairman, physician or nurse and the secretary shall be
permanent members of the Safety Committee.
Term of office of the department head in the Safety
Committee shall be for 1 year.
In Types A and B, terms of the worker-members shall 2
years each.
In Types C, D and E, terms of the worker-members
shall be 1 year each.
In Type E safety committee, term of office of the
Chairman, and the members shall be 1 year.
Membership in the Joint Committee shall be rotated
among members of the safety committees in other
establishments.
7. The Safety Man
To act as the employer’s principal assistant and consultant in
the application of programs to remove the hazards from the
workplace and to correct unsafe work practices.
Safety Man has the following duties:
a. Serves as Secretary to the Health and Safety
Committee. As such, he shall:
i. prepare minutes of meetings;
ii. report status of recommendations made;
iii. notify members of the meetings; and
iv. submit to the employer a report of the activities
of the committee, including recommendations
made.
b. Acts in an advisory capacity on all matters pertaining to
health and safety for the guidance of the employer and
the workers.
c. Conducts investigation of accidents as member of the
Health and Safety Committee and submits his separate
report and analysis of accidents to the employer.
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d. Coordinates all health and safety training programs for
the employees and employer.
e. Conducts health and safety inspection as member of
the committee.
f. Maintains or helps in the maintenance of an efficient
accident record system and coordinates actions taken
by supervisors to eliminate accident causes.
g. Provides assistance to government agencies in the
conduct of safety and health inspection, accident
investigation or any other related programs.
h. For purposes of effectiveness in a workplace where fulltime safety man is required, he shall report directly to
the employer.
8. Report of Accidents or Occupational Illness
a. All work accidents or occupational illnesses in places of
employment, resulting in disabling condition shall be
reported by the employer to the Regional Labor Office
or duly authorized representative in duplicate and a
copy furnished the employee or his duly authorized
representative using form DOLE/BWC/HSD-IP-6. The
formal report shall be submitted by the employer on or
before the 20th day of the month following the date of
occurrence of the accident or when the illness, is
established and an investigation report in the prescribed
form shall be submitted by the Regional Office or duly
authorized representative on or before the 30th day of
the same month.
In case of temporary total disability where the injured
or ill employee has not reported back to duty on the
closing date of reporting, an estimate of the probable
days of disability shall be made and entered in the
report and corrected after the return of the injured. In all
computations, this estimate shall be used. After the
return of the injured, the corrected days of absence
shall be used.
b. Where the accident or fitness results in death or
permanent total disability, the employer, in addition to
the written report required under sub-paragraph (1)
above, shall initially notify the Regional Labor Office or
duly authorized representative within twenty four (24)
hours after occurrence using the fastest available
means of communication.
c. All deaths and permanent total disabilities shall be
investigated by the Regional Office or duly authorized
representative within forty eight (48) hours after receipt
of the initial report of the employer, prepared in
duplicate using the prescribed form DOLE/
BWC/OHSD-IP-6a.
9. Report of Dangerous Occurrence
Any dangerous occurrence as specified in sub-paragraph (2)
hereunder, which may or may not cause serious bodily harm to
workers employed or seriously damage the premises of
employment shall be investigated and reported by the employer
upon occurrence to the Regional Labor Office or duly authorized
representative having jurisdiction in duplicate using the
prescribed form DOLE/BWC/HSD-IP-6.
a. The following are dangerous occurrences, which shall
be investigated and reported:
i. Explosion of boilers used for heating or power.
ii. Explosion of a receiver or storage container,
with pressure greater than atmospheric, of any
gas or gases (including air) or any liquid
resulting from the compression of such gases or
liquid.
iii. Bursting of a revolving wheel, grinder stone or
grinding wheel operated by mechanical power.
iv. Collapse of a crane, derrick, winch, hoist or
other appliances used in raising or lowering
persons or goods or any part thereof, the
overturning of a crane, except the breakage of
chain or rope sling.
v. Explosion or fire causing damage to the
structure of any room or place in which persons
are employed or to any machine contained
therein resulting in the complete suspension of
ordinary work in such room or place, or
stoppage of machinery or plant for not less than
twenty four (24) hours, and
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vi. Electrical short circuit or failure of electrical
machinery, plant or apparatus, attended by
explosion or fire causing structural damage
thereto and involving its stoppage and misuse
for not less than 24 hours.
10. Purpose of the Reporting Requirement
• Reports made by the employer shall be exclusively for
the information of the Regional Labor Office or duly
authorized representative in securing data to be used in
connection with the performance of its accident and
illness prevention duties and activities.
• These reports shall not be admissible as evidence in
any action or judicial proceedings in respect to such
injury, fitness or death on account of which report is
made and shall not be made public or subject to public
inspection except for prosecution for violations under
this Rule.
11. Records to be Kept by Employer
a. The employer shall maintain and keep an accident or
illness record which shall be open at all times for
inspection to authorized personnel containing the
following minimum data:
i. Date of accident or illness;
ii. Name of injured or ill employee, sex and age;
iii. Occupation of injured or ill employee at the time
of accident or illness;
iv. Assigned causes of accident or illness;
v. Extent and nature of disability;
vi. Period of disability (actual and/or charged);
vii. Whether accident involved damaged to
materials, equipment or machinery, kind and
extent of damage, including estimated or actual
cost; and
viii. Record of initial notice and/or report to the
Regional Labor Office or authorized
representative.
b. The employer shall accomplish an Annual Work
Accident/Illness Exposure Data Report in duplicate
using the prescribed form DOLE/BWC/HSD-IP-6b,
which shall be submitted to the Bureau copy furnished
the Regional Labor Office or duly authorized
representative having jurisdiction on or before the 30th
day of the month following the end of each calendar
year.
12. Registration
Every employer shall register his business with the Regional
Labor Office or authorized representative having jurisdiction
thereof to form part of a databank of all covered establishments.
• The establishment regardless of size of economic
activity, whether small, medium or large scale in one
single location, shall be one registrable unit.
• New establishments shall register within thirty (30) days
before operation.
• Registration shall be made in form DOLE-BWC-IP-3 in
three copies and to be submitted to the Regional Labor
Office or authorized representatives.
• Registration shall be free of charge and valid for the
lifetime of the establishment except when any of the
following conditions exists, in which case, re-registration
as if it were a new establishment is required:
o change in business name,
o change in location,
o change in ownership, or
o re-opening after previous closing.
• Registration shall include a layout plan of the place of
work floor by floor, in a scale of 1:100 meters white or
blue print showing all the physical features of the
workplace including storage, exits, aisles, machinery,
clinic, emergency devices and location.
Art. 163. Research. It shall be the responsibility of the Department
of Labor and Employment to conduct continuing studies and
research to develop innovative methods, techniques and
approaches for dealing with occupational safety and health
problems; to discover latent diseases by establishing causal
connections between diseases and work in environmental
conditions; and to develop medical criteria which will assure
insofar as practicable that no employee will suffer impairment or
diminution in health, functional capacity, or life expectancy as a
result of his work and working conditions.
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1. Agencies tasked to Conduct Research
Vested primarily on the Bureau of Working Conditions and the
Occupational Safety and Health Center.
Art. 164. Training programs. The Department of Labor and
Employment shall develop and implement training programs to
increase the number and competence of personnel in the field of
occupational safety and industrial health.
1. Training of Personnel in Safety and Health
Every employer shall take steps to train a sufficient number of
his supervisors or technical personnel in occupational safety
and health. An employer may observe the following guidelines in
the training of his personnel:
a. In Non-Hazardous Establishment or Workplace
i. 50 to 400 workers per shift – at least 1 of the
supervisors or technical personnel shall be
trained in occupational health and safety and
shall be assigned as part-time safety man.
ii. Over 400 workers per shift – at least 2 of its
supervisors shall be trained and a full-time
safety man provided.
b. In Hazardous Establishment or Workplace
i. 20 to 200 workers per shift – at least 1
supervisor or technical personnel trained
working part-time safety man
ii. Over 200 workers per shift – at least 2
supervisors or technical personnel appointed
full-time safety man and secretary of the safety
committee.
The employment of a full-time safety man not be required where
the employer enters into a written contract with a qualified
consulting organization which shall develop and carry out his
safety and health activities; Provided, That the consultant shall
conduct plant visits at least four (4) hours a week and is subject
to call anytime to conduct accident investigations and is
available during scheduled inspections or surveys by the
Secretary of Labor and Employment or his authorized
representatives.
Art. 165. Administration of safety and health laws – The Department
of Labor and Employment shall be solely responsible for the
administration and enforcement of occupational safety and health
laws, regulations and standards in all establishments and
workplaces wherever they may be located; however, chartered
cities may be allowed to conduct industrial safety inspections of
establishments within their respective jurisdictions where they
have adequate facilities and competent personnel for the purpose
as determined by the Department of Labor and Employment and
subject to national standards established by the latter.
The Secretary of Labor and Employment may, through appropriate
regulations, collect reasonable fees for the inspection of steam
boilers, pressure vessels and pipings and electrical installations,
the test and approval for safe use of materials, equipment and
other safety devices and the approval of plans for such materials,
equipment and devices. The fee so collected shall be deposited in
the national treasury to the credit of the occupational safety and
health fund and shall be expended exclusively for the
administration and enforcement of safety and other labor laws
administered by the Department of Labor and Employment.
1. Enforcement of Safety and Health Laws
• Only the DOLE is responsible for administration and
enforcement of occupational safety and health laws in
all workplaces
• Chartered cities may however be authorized by the
Secretary to enforce these laws in their jurisdictions if
they have:
o Facilities
o Personnel
As determined by the national Standards
prescribed by the DOLE
2. Types of Inspection
• Technical Safety Inspection
o For the purpose of safety determination of
boilers, pressure vessels, internal combustion
engines, electrical installation, elevators,
hoisting equipment and other mechanical
equipment
• General Safety Inspection
o Work environment; location and operation of
machinery other than those covered by
previous type, adequacy of work space,
ventilation, lighting, handling, work environment
conditions, storage or work procedures,
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protection facilities and other safety and health
hazards in workplace
3. Frequency of Inspection
Once a year. Special Inspection may be authorized by the
Regional Labor Office:
• To investigate accidents, occupational illness or
dangerous occurrences, like those resulting in
permanent total disability or death;
• To conduct surveys of working conditions requested by
the Bureau for the purpose of evaluating and assessing
environmental contaminant and physical conditions;
• to conduct investigations, inspection or follow-up
inspections upon request of an employers, worker or
labor union of the establishment.
Title II
EMPLOYEES’ COMPENSATION AND STATE INSURANCE FUND
Chapter I
POLICY AND DEFINITIONS
Art. 166. Policy. The State shall promote and develop a tax-exempt
employees’ compensation program whereby employees and their
dependents, in the event of work-connected disability or death,
may promptly secure adequate income benefit and medical related
benefits
1. Features of the New Compensation Scheme
• Employer does not intervene in the compensation
process and it has no control over payment of benefits.
• Employer must give contributions to State Insurance
Fund, from where compensation payments are taken;
Duty is to only pay monthly premiums.
• Employees are no longer required to litigate his right to
compensation.
• Employee simply files a claim with the Employee’s
Compensation Commission, which then shall determine
whether or not the compensation should be paid.
• An illness is compensable only when it is classified as
an occupational disease and the conditions that would
render them compensable are met; Those not listed as
occupational diseases are compensable only if the
claimant can prove that the risk of contracting the
disease is increased by the conditions of employment.
Compensation benefits are available only in case of
work-connected disability or death arising from:
o Injury; or
o Illness.
2. Compensability of Disability or Death Arising From Injury
Injury must be the result of an employment accident that
satisfies all of the following conditions:
• The employees must have been injured at the place
where his work requires him to be;
• The employee must have been performing his functions;
and
• If the injury is sustained elsewhere, the employee must
have been executing an order for the employer.
It is not necessary that the injury be sustained at the place of
employment. As long as the employee acted within the purview
of his employment, injury sustained because of it falls within the
law’s protection.
•
a. The Personal Comfort Doctrine
Acts performed by an employee within the time and
space limits of his employment, to minister to his
personal comfort, such as satisfaction of his thirst,
hunger or other physical demands, or to protect himself
from excessive cold, shall be deemed incidental to his
employment and injuries the employee suffered in
the performance of such acts shall be considered
compensable and arising out of and in the course of
employment.
b. Going to and Coming from Place of Work Doctrine
Injury or death resulting from an accident while the
employee is in transit as regards the work establishment
is compensable if the following conditions are met:
• The acts of the employee of going to, or coming
from, the workplace must have been a
continuing act, i.e., he had not been diverted
therefrom by any other activity, and he had not
departed from his usual route to, or from, his
workplace; and
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If the employee was sent on a special errand,
the special errand must have been official and
in connection with his work.
Illustrative Cases (p. 527 – 529 of book)
•
c.
LOPEZ vs. EMPLOYEES COMPENSATION COMMISSION
Facts: Petitioner's late husband, Pedro Lopez, was employed as a
public school teacher at the Urdaneta National High School, Urdaneta,
Pangasinan, from July 1, 1973 until his untimely demise on May 27,
1987.chOn April 27, 1987, a memorandum was issued to Pedro Lopez
by the head of the school's Science Department and noted by Lino A.
Caringal, Sr. the principal lopez complied with his superior's instruction
and constructed an improvised electric micro-dam, which he took home
to enable him to finish it before the deadline. On May 27, 1987, at
around 6:30 A.M., while he was engrossed in his project, he in contact
with a live wire was electrocuted. He was immediately brought to a clinic
for emergency treatment but was pronounced dead on arrival. The
death certificate showed that he died of cardiac arrest due to accidental
electrocution.
Held: The death is compensable. While the death of Pedro Lopez took
place in his house and not in his official work station, which is the
school, he was still discharging his function as the one in-charge of the
project. He was constrained to finish the project within a specific period
of time and he could only do so if he worked overtime in his house.
Inasmuch as Lopez had to finish the project on the time for the contest
scheduled on October 5 and 9, 1987, it can be implied that Lopez was
given permission, if not direction, to perform his work at his house.
CELERINO VALERIANO vs. EMPLOYEES’ COMPENSATION
COMMISSION
Facts: Celerino S. Valeriano was employed as a fire truck driver
assigned at the San Juan Fire Station. Sometime on the evening of July
3, 1985, petitioner was standing along Santolan Road, Quezon City,
when he met a friend by the name of Alexander Agawin. They decided
to proceed to Bonanza Restaurant in EDSA, Quezon City, for dinner. On
their way home at around 9:30 PM, the owner-type jeepney they were
riding in figured in a head-on collision with another vehicle at the
intersection of N. Domingo and Broadway streets in Quezon City. Due to
the strong impact of the collision, petitioner was thrown out of the vehicle
and was severely injured. As a result of the mishap, petitioner was
brought to several hospitals for treatment.
Held: Petitioner Valeriano was not able to demonstrate solidly how his
job as a firetruck driver was related to the injuries he had suffered. That
he sustained the injuries after pursuing a purely personal and social
function -- having dinner with some friends -- is clear from the records of
the case. His injuries were not acquired at his work place; nor were they
sustained while he was performing an act within the scope of his
employment or in pursuit of an order of his superior. Thus, we agree with
the conclusion reached by the appellate court that his injuries and
consequent disability were not work-connected and thus not
compensable.
JUANITA NITURA vs. EMPLOYEES' COMPENSATION COMMISSION
Facts: Regino S. Nitura, started his military service on October 5, 1978
when he was caged for military training in the Philippine Army.
In the evening of March 2, 1986, he was instructed to go to Barangay
San Jose, Dipolog City, which is more or less one (1) kilometer from the
Command Post of his Company, to check on several personnel of the
Command who were then attending a dance party. This instruction was
attested to by his Battalion Commander, Col. Loreto M. Deus, 0-90573
Inf. (GSC) PA in his affidavit dated July 8, 1986 (Annex "A" of the
Petition, Rollo, p. 15). On his way back to the camp, he passed, crossed
and fell from a hanging wooden bridge connects Barangay San Jose,
Dipolog City and Barangay Basagan, Katipunan, Zamboanga del Norte,
his head hitting the stony portion of the ground. His death certificate
(Annex 'B" of the Petition, Rollo, p. 16) shows that he died of
"cardiorespiratory arrest, shock, traumatic due to hemorrhage,
intracranial due to severe concussion of the brain due to accidental fall".
Held: Compensable. Performing an official function when he died.
Twenty-Four-Hour Duty Doctrine Under the 24 hour duty doctrine, a
soldier on active duty status and is subject to military discipline and
military law 24 hours a day. To be entitled to compensation, the
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standard of work connection must still be established by substantial
evidence.
Doctrine, a soldier on active duty status and is subject to military
discipline and military law 24 hours a day.
DE LA REA vs. EMPLOYEES' COMPENSATION COMMISSION
Note: Disability or death arising from injury by a member of the military
while on rest and recreation, which is considered part of the soldier’s
military activities, after having gone on actual combat duty, as certified to
by the proper commanding officer, is compensable.
Facts: De la Rea enlisted in the Philippine Navy. On May 15, 1982, he
was granted vacation leave, for fifteen (15) days, from May 15, to May
30, 1982, for the purpose of undergoing physical examination relative to
his re-enlistment in the Philippine Navy. While enjoying his rest and
recreation privileges at his hometown in Halang, Amadeo, Cavite, he
was shot to death for unknown motive by a certain Pepito Montoya who
is also a resident of the same place. Mauricio de la Rea died instantly
from gunshot wounds he sustained.
Held: Not compensable. De la Rea was not at the time and place where
his work is required him to be. Neither was he performing official
functions. His death is not work- connected.
Military Men “on pass” or on rest and recreation
GR: Disability or death arising from injury by a member of the military
while “on pass” for a period not exceeding 72 hours is compensable.
EXP: If not reported after 72 hour period, not compensable.
EXP to EXP: Still compensable if failure was due to legitimate and valid
reasons, provided there has been no unjustified deviation from the
conditions for the issuance of pass.
Compensability of Death or Disability Arising From Illness
Death or disability from illness is compensable:
a. if the illness is clarified as an occupational disease;
b. if not classified as occupational disease, the risk of contracting
the same is proven by substantial evidence to have been
increased by the working conditions.
Occupational Diseases
The following diseases are considered as occupational when
contracted under working conditions involving the risks described
herein:
HINOGUIN vs. EMPLOYEES' COMPENSATION COMMISSION
Facts: On 1 August 1985, Sgt. Hinoguin and two (2) members of his
Detachment, sought permission from Captain Frankie Z. Besas, to go on
overnight pass to Aritao, Nueva Viscaya, "to settle [an] important matter
thereat."Captain Besas orally granted them permission to go to Aritao
and to take their issued firearms with them, considering that Aritao was
regarded as "a critical place " that is, it had peace and order problems
due to the presence of elements of NPA in or in the vicinity of Aritao.
Upon reaching the poblacion of Aritao, he was accidentally shot by his
companion, as a result of which he died.
Held: Compensable because it arose out of and in the course of his
employment as a soldier on active duty. Twenty-Four-Hour Duty
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Occupational Diseases
Nature of Employment
1. Cancer of the epithelial lining
of the bladder.
(Papilloma of the bladder).
Work involving exposure to
alphanaphthylamine, betanaphthylamin or benzidine or any
part of the salts; and
auramine or magenta.
2. Cancer, epithellomatous or
ulceration of the
skin or of the corneal surface of
the eye due
to tar, pitch, bitumen, mineral oil
or paraffin,
or any compound product or
residue of any of
these substances.
The use of handling of, or
exposure to tar; pitch, bitumen, mineral oil (including
paraffin) soot or any compound product or residue of any
of these substances.
3. Cataract produced by exposure
to the glare
of, or rays from molten glass or
molten or red
hot metal.
Frequent and prolonged exposure
to the glare of or
rays from molten glass or red hot
metal.
4. Deafness
Any industrial operation having
excessive noise particularly in the higher frequencies.
5. Decompression sickness
Any process carried on in
compressed or rarefied air.
(a) Caissons disease
(b) Aeroembolism
Any process carried on in rarefied
air.
6. Dermatitis due to irritants
and sensitizers
The use or handling of chemical
agents which are skin
irritants and sensitizers.
7. Infections
(a) Anthrax
infected with anthrax,
handling of animal carcasses or
parts of such carcasses
including hides, hoofs, and horns.
(b) Brucellosis
(c) Glanders
(d) Rabies
Any occupation involving rabid
dogs.
(e) Tuberculosis
Any occupation involving close
and frequent contact with
a source or sources of
tuberculosis infection by reason
of
employment: (a) in the medical
treatment or nursing of a
person or persons suffering from
tuberculosis, (b) as a
laboratory worker, pathologists or
post-mortem worker,
where occupation involves
working with material which is
a source of tuberculosis infection.
(f) Tularemia
Any occupation involving handling
of rabbits, ground
squirrels, mice or other rodents.
(g) Weill's disease
Any occupation involving handling
of rats, mice, swine
and dogs.
(h) Q. Fever or equine
encephalomyelitis
Any occupation, involving
handling of horses, cattle and
sheep, or their slaughter and
Work in connection with animals
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Any occupation involving handling
of contaminated food
and drink particularly milk, butter
and cheese of infected
goats and cows
Any occupation involving rabid
dogs, or equine animals
or carcasses.
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meat packing.
(I) Mite dermatitis
Any occupation involving handling
of owls or pigeons.
8. Ionizing radiation disease,
inflammation,
ulceration or malignant disease of
skin or
subcutaneous tissues of the
bones or leukemia, or anemia of the aplastic
type due to xrays, ionizing particle, radium or
other radioactive substances.
Exposure to X-rays, ionizing
particles of radium or other
radioactive substances or other
forms of radiant energy
(a) Acute radiation syndrome
Short duration of exposure to
large doses of X-rays,
gamma rays, alpha rays and beta
rays.
nitro and
aminotoxic derivatives of benzene or
its homologue
(d) Beryllium or its toxic compounds
risk concerned
(e) Brass, zinc or nickel
All work involving exposure to the
risk concerned.
(f) Carbon dioxide
All work involving exposure to the
risk concerned.
All work involving exposure to the
risk concerned
All work involving exposure to the
risk concerned.
All work involving exposure to the
risk concerned.
(g) Carbon bisulfide
(h) Carbon monoxide
(I) Chlorine
(b) Chronic radiation syndrome
(c) Glass Blower’s cataract
Chronic over-exposure to X-rays
with a long latent
period affecting the skin, blood
and reproductive organ.
Among furnace men, glass
blowers, baker, blacksmith,
foundry workers. These are
workers exposed to infrared
rays.
9. Poisoning and its sequelae
caused by:
All work involving exposure to the
risk concerned.
(j) Chrome or its toxic compounds
All work involving exposure to the
risk concerned.
(k) Dinitrophenol or its homologue
All work involving exposure to the
risk concerned.
(l) Halogen derivatives of
hydrocarbon of the aliphatic series
All work involving exposure to the
risk concerned.
(m) Lead or its toxic compounds
All work involving exposure to the
risk concerned.
(n) Manganese or its toxic
compounds
All work involving exposure to the
risk concerned
(o) Mercury or its toxic compounds
All work involving exposure to the
risk concerned
All work involving exposure to the
risk concerned.
(a) Ammonia
All work involving exposure of the
risk concerned.
(p) Nitrous fumes
(b) Arsenic or its toxic compound
All work involving exposure to the
risk concerned.
(q) Phosgene
All work involving exposure to the
risk concerned.
(c) Benzene or its toxic homologues,
All work involving exposure to the
(r) Phosphorus or its toxic
All work involving exposure to the
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compounds
risk concerned.
(s) Sulfur dioxide
All work involving exposure to the
risk concerned.
persons suffering from
viral hepatitis, or in a service
ancillary to such treatment
or nursing.
10. Pneumoconiosis
(a) Coal miner's
(b) Bysinosis
Exposure to coal dust.
Exposure to cotton dust causing
weaver’s cough or mill fever.
(c) Bagassosis
Exposure to sugar cane dust.
(d) Psittacosis
Any occupation involving handling
of parrots, parakeets
and other species of birds.
11. Diseases caused by
abnormalities in temperature and humidity.
Any occupation involving
exposure to excessive heat or
cold
(a) Heat stroke/cramps/exhaustion
Any occupation involving
exposure to excessive heat.
(b) Chilblain/frostbite/freezing
Any occupation involving
exposure to excessive cold.
Any occupation involving
exposure to excessive cold.
(c) Immersion foot/general
hypothermia
12. Vascular disturbance in the
upper extremities
due to continuous vibration from
pneumatic
tools or power drills, riveting
machines or
hammers.
Any occupation causing repeated
motions, vibrations and
pressure of upper extremities.
13. Viral Hepatitis*
Among workers in close and
frequent contact with (a)
human blood products and with
(b) a source of viral
hepatitis by reason of
employment in the medical treatment or nursing of a person or
14. Poisoning by cadmium*
Among workers in battery
factories, who are exposed to
cadmium fumes.
15. Leukemia and lymphoma*
Among operating room personnel
due to exposure to
anesthetics.
16. Cancer of stomach and other
lymphatic and
blood forming vessels; nasal
cavity and
sinuses.*
Among woodworkers, wood
products industry carpenters,
loggers and employees in pulp
and paper mills and
plywood mills.
17. Cancer of the lungs, liver and
brain*
Among vinyl chloride workers,
plastic workers
The following, although not considered occupational diseases, are
nevertheless [when] work-related, compensable too.
18. CARDIO-VASCULAR
conditions —
DISEASES.
of
the
following
(a) If the heart disease was known to have been present during
employment, there must be proof that an acute exacerbation was
clearly precipitated by unusual strain by reasons of the nature of
his work.
(b) The strain of work that brings about an acute attack must be of
sufficient severity and must be followed within twenty four (24)
hours by the clinical signs of a cardiac insult to constitute causal
relationship.
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(c) If a person who was apparently asymptomatic before being
subjected to strain at work showed signs and symptoms of cardiac
injury during the performance of his work and such symptoms and
signs persisted, it is reasonable to claim a causal relationship.
19. CEREBRO-VASCULAR
ACCIDENTS.
All
the
following
conditions — (a) There must be a history, which should be proved,
or trauma at work (to the head especially) due to unusual and
extraordinary physical or mental strain or event, or undue exposure
to noxious gases in industry.
(b) There must be a direct connection between the trauma or
exertion in the course of the employment and the worker's collapse.
(b) There must be direct connection between the offending agent or
event and the worker's illness.
(c) The signs of consolidation should appear soon (within a few
hours) and the symptoms of initial chilling and fever should at least
be twenty four (24) hours after the injury or exposure.
(d) The patient must manifest any of the following symptoms within
a few days of the accident: (1) severe chill and fever; (2) headache
and pain, agonizing in character, in the side of the body; (3) short,
dry, painful cough with blood-tinged expectoration; and (4) physical
signs of consolidation, with fine rales.
22. HERNIA. All the following conditions —
c) If the trauma or exertion then and there caused a brain
hemorrhage, the injury may be considered as arising from work.
(a) The hernia should be of recent origin.
20. MALARIA AND SCHISTOSOMIASIS. All the following conditions
—
(b) Its appearance was accompanied by pain, discoloration and
evidence of a tearing of the tissues.
(a) Through the knowledge of the respective incubation periods of
the different types of the diseases, the physician determining the
causal relationship between the employment and the illness or
malaria or schistosomiasis should be able to tell whether the
disease of the afflicted employee manifested itself while he was so
employed.chan robles virtual law library
(c) The disease was immediately preceded by undue or severe
strain arising out of and in the course of employment.
(b) Compensability should be based on the principle of greater risk
of acquiring the disease in the place of work than in the place of
usual residence of the afflicted worker.
(c) The place of work of employment has to be verified as a
malarial or schistosomal work area.
21. PNEUMONIA. All of the following conditions —
(a) There must be an honest and definite history of wetting and
chilling during the course of employment and also, of injury to the
chest wall with or without rib fracture, or inhalation of noxious
gases, fumes, and other deleterious substances in the place of
work.
(d) A protrusion of mass should appear in the area immediately
following the alleged strain.
23. BRONCHIAL ASTHMA. All the following conditions —
(a) There is no evidence of history of asthma before employment.
(b) The allergen is present in the working conditions.
(c) Sensitivity test to allergens in the working environment should
yield positive results.
(d) A provocative test should show positive results.
24. OSTEOARTHRITIS. a) Any occupation involving: aa) joint strain
from carrying heavy loads, or unduly heavy physical labor, as
among laborers and mechanics; bb) minor or major injuries to the
joint; cc) excessive use or constant strenuous usage of a particular
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joint, as among sportsmen, particularly those who have engaged in
the more active sports activities; dd) extreme temperature changes
(humidity, heat, and cold exposures); and ee) faulty work posture or
use of vibratory tools.
25. VIRAL ENCEPHALITIS. Any occupation involving; aa) contact
with an infected person, as in areas of poor sanitation, with a high
density of school children, who are the most frequent virus
spreaders; bb) rural exposure, primarily in picnics, camping
activities, fishing or hunting in, or adjacent to, woods or subtropical
vegetations, or as among agricultural and forest workers; and cc)
contact with other sources of infection, such as birds and animals,
as among veterinarians and abattoir workers.
26. PEPTIC ULCER. Any occupation involving prolonged
emotional, or physical stress, as among professional people,
transport workers, and the like.
27. PULMONARY TUBERCULOSIS. In addition to working
conditions already listed under PD 626, as amended, any
occupation involving constant exposure to harmful substances in
the working environment, in the form of gases, fumes, vapors and
dust, as in chemical and textile factories; overwork or fatigue; and
exposure to rapid variations in temperature, high degree of
humidity and bad weather conditions; and
28. VIRAL HEPATITIS. In addition to the working conditions already
listed under PD 626, as amended, any occupation involving:
exposure to a source of infection through ingestion of water, milk,
or other foods contaminated with hepatitis virus; Provided that the
physician determining the causal relationship between the
employment and the illness should be able to indicate whether the
disease of the afflicted worker manifested itself while he was so
employed, knowing the incubation period thereof.
b. The disease was contracted as a result of the employee’s
exposure to the described risks;
c. The disease was contracted within a period of exposure and
under such factors necessary to contract it;
d. There was no notorious negligence on the part of the employee.
GR: Silicosis, asbestosis and byssinosis shall not be compensable if the
exposure to the described risk is less than 10 years.
EXP: unless proven otherwise.
“Increase Risk” Doctrine
•
•
•
•
•
There is increased risk if the illness is caused by or precipitated
by factors inherent in the employees’ nature of work and working
conditions.
It does not include aggravation of pre-existing illness.
All that is required is reasonable work-connection, which could
be established by mere substantial evidence.
It is essential for the claimant to show that the development of
the disease was brought largely by the conditions present in the
nature of the job.
The test of evidence in compensation cases or the relation of the
disease with the employment is probability and not certainty.
Illustrative Cases
A. Acute follicular pharyngitis with hypertropic rhinitis
SARMIENTO VS. EMPLOYEES' COMPENSATION COMMISSION
Compensability of occupational diseases
For an occupational disease to be compensable:
Facts: Martiniano Sarmiento was a casual laborer of the Bureau of
Agricultural Extension requiring him to deal with different kinds of
plants which have to be sprayed with insecticides and pesticides. On
February, 1983, as per medical records, petitioner's illness started as
a fever accompanied by chest pain, cough, and watery nasal
a. the employee’s work must involve the described risk.
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discharge. His illness was diagnosed as acute follicular pharyngitis
with hypertrophic rhinitis.
Held: Compensable. An extensive analysis of the petitioner's
ailments and the circumstances under which they were suffered
provides us with the reasonable proof of work-connection, if not a
direct causal relation between his employment and said illnesses.
The very nature of petitioner's ailments as respiratory diseases vis-avis his occupation with the Bureau of Agricultural Extension where,
as laborer, he was constantly exposed to plant dusts, and chemicals
such as pesticides and fertilizers, clearly respiratory irritants,
substantiates petitioner's claim of work-connection and increased
risk.
B. Monocytic Leukemia
DURAN, vs.EMPLOYEES' COMPENSATION COMMISSION
Facts: Duran entered the government service on October 15, 1941
as an employee in the Department of Finance. He joined the
Judiciary on May 31, 1952 as justice of the peace of the
municipalities of Basay Sta. Rita and Marabut, province of Samar
(pp. 8 and 72, rec.). He was the municipal judge of Sta. Rita, Samar
when, after prolonged (5 years) ailments, he succumbed to acute
monocytic leukemia on April 28, 1977
Held: Compensable. Deceased served in three municipalities which
did not have adequate transportation facilities. He was literally
exposed to the elements — the sun, rain, water and rough roads. He
worked as if he were a fieldman; he was a roving judge. The tedious
work coupled with unhealthy exposure bore down on him after 20
years. He must have been a strong, healthy person when he first
joined the Judiciary because it took all of 20 years before he suffered
from angina pectoris, gouty arthritis, coronary insufficiency and
monocytic leukemia. Needless to say, the human body can only take
so much physical and mental pressures.
as municipal treasurer of Daraga, Albay, which position he occupied
since July 1, 1975 until his death on June 1, 1976. The cause of his
death was certified to be " acute monolytic leukemia."
Held: Not Compensable. the acute monolytic leukemia that resulted
in the death of the petitioner's husband could have been caused by
or traceable to conditions under which he Performed his duties as
municipal treasurer.
C. Cancer of the Lungs
LATAGAN VS. EMPLOYEES’ COMPENSATION COMMISSION
Facts:T/Sgt. Josue A. Latagan, who was employed in the Philippine
Navy from 1949 up to the time he died in 1978. She claims that her
husband fatal ailment known as bronchogenic carcinoma was
caused by his employment, and that the risk of contracting the
disease was aggravated by the working conditions attendant to his
duties as gunnersmate in the Philippine Navy.
Held: Not compensable. The cause of her husband's death,
bronchogenic carcinoma, is not an occupational disease. Cancer of
the lungs was listed as occupational disease, is misplaced because
lung cancer, as shown in the list therein, is occupational only in
respect to "vinyl chloride workers" and "plastic workers".
DATOR vs.EMPLOYEES' COMPENSATION COMMISSION
Facts: Dator who was a municipal librarian of the Municipality of
Lopez, Quezon when she died of Bronchogenic Carcinoma with
Pleural Effusion on December 2, 1972.
Held: Compensable. Exposed to dusty books and other deleterious
substances in the library which may have increased the risk of her
contracting cancer of the lungs.
ARMEÑA vs.EMPLOYEES' COMPENSATION COMMISSION
Facts: Patricio D. Armeña, husband of the herein petitioner was
employed by the government on February 21, 1942, and held the
positions of clerk, public school teacher, budget examiner and lastly
D. Cancer of the liver
Abadiano vs. GSIS
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Facts: Catalina Buenvenida was employed at the Department of
Education as elementary grades teacher. The deceased's liver
cancer started in September of 1978 as gradual weight loss, nausea
and vomiting. These symptoms were later on accompanied by
emaciation and gradual enlargement of the upper abdomen. She
was then 51 years of age and her death was attributed to her
affliction of cancer of the liver.
Held: Compensable. The duties of the public school teacher are not
confined to the classroonm During the 24 years that Catalina B.
Buenvenida worked as a teacher, she must have been exposed to
the elements while attending to the outdoor projects which were part
of the curriculum and extra curricular activities connected with her
school work.
E. Cancer of the breast
Held: Not compensable. Cancer of pancreas is not an occupational
disease. There is no showing that the work of a bookkeeper would
increase the risk of contracting cancer of the pancreas.
G. Cancer of the rectum
CRISTOBAL vs. EMPLOYEES' COMPENSATION COMMISSION
Facts: Fortunato S. Cristobal was employed as Supervising
Information Officer 11 of the National Science Development Board
(NSDB for short) based in Bicutan, Taguig, Rizal. On April 8, 1976,
he developed loose bowel movement which later worsened and his
excrement was marked with fresh blood. Self-administered
medications were made but symptoms persisted until April 22, 1976
when he was brought to the Hospital . he was diagnosed with rectal
malignancy. Despite earnest medical efforts, he succumbed to his
illness on May 27, 1977
Bonifacio vs. GSIS
Facts: Lourdes Bonifacio was a classroom teacher from August,
1965 until she contracted carcinoma of the breast with metastases to
the gastrointestinal tract and lungs which caused her death on
October 5, 1978.
Held: Not compensable. The cancer which affected the decease not
being occupational in her particular employment.
F. Cancer of the pancreas
MILANO vs.EMPLOYEES' COMPENSATION COMMISSION
Facts: Samuel Milano started working for the government in 1955 as
a FACOMA bookkeeper. Milano started to feel vague signs of
"epigastric pain" which were later diagnosed as "penetrating
Duodenal Ulcer On". Dr. Gerardo Ypil of the hospital diagnosed his
ailment as "cancer of the pancreas with metastases". On March 15,
1977, he was discharged from the hospital. On the same day, he
died of cardiorespiratory arrest due to cancer of the pancreas.
Held: Compensable. The nature of his work exposed him to various
chemicals and intense heat. This circumstance must have increased
the risk of contracting the cancer of the rectum.
H. Cancer of the colon
BRAVO vs. EMPLOYEES' COMPENSATION COMMISSION
Facts: Bravo was employed at the Bureau of Coast and Geodetic
Survey as a cartographer. litho-photo engraving supervisor, he was
involved in drafting and plate printing, developing and processing
either dry or wet negatives, and supervising the formulation of lightsensitive lithographic chemicals from re-agent of nitric, phosphoric,
oleic acids, potassium ferricynamide, ammonium hydroxide and
ammonium dichromate in the kithographic laboratory. November,
1979, Bravo complained of irregular bowel movement, constipation
and abdominal pain. A few months later he began losing weight and
appetite. His ailment was diagnosed as "adenocarcinoma sigmoid
(colon) Duke's C and chronic peri-appendicitis".
Held: Not compensable. Bravo's ailments were "too remote to be
related causally to his work and working conditions" at the Bureau of
Coast and Geodetic Survey.
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I.
Cirrhosis of the liver
K. Myocardial infraction
SAN VALENTIN vs. EMPLOYEES' COMPENSATION
COMMISSION
Facts: Delfin San Valentin, husband of petitioner entered the
government service in 1951 as a laborer in the Bureau of Plant
Industry's Economic Garden. The deceased noticed some symptoms
of iii-health, such as discharging urine deep yellow in color, yellowing
of skin progressive abdominal enlargement as well as feeling of
fullness. He was diagnosed to be suffering from hepatic
encephalopathy obstruction jaundice due to tuberculosis of the liver,
pancreatic carcinoma and hepatoma.
Held: Compensable. The frequent exposure of the deceased to plant
chemicals and insecticides affected his health. It is not too farfetched that the ailment of the deceased developed due to the
chemicals used in the nursery farm where he was assigned, for it
cannot be denied that the nature of his work required him to deal
with different kinds of plants which have to be sprayed with
insecticides and the like.
J. Diabetes mellitus
MILLORA VS. EMPLOYEES COMPENSATION COMMISSION
Facts: Prisco Millora, who had been a classroom teacher at the
Division of Public Schools in Pangasinan since 1963 until his death
at age 40 on February 1, 1982. Having been a diabetic during the
last eleven [11] years of his life, Prisco Millora had, on several
occasions, been admitted to and confined at the Pangasinan
Provincial Hospital for treatment of diabetes mellitus and diabetic
ulcers.
Held: Compensable. Although not predisposed to diabetes mellitus
by reason of old age, obesity or heredity, he became diabetic after
eight [8] years in said employment. As a classroom teacher, his
work was not confined to the regular eight-to-five schedule, but
stretched into the long hours of the night preparing lesson plans and
instructional materials. That the above-cited work activities likewise
increased the deceased's risk of contracting the fatal complications,
ulcer of the extremities and cataract.
SEPULVEDA vs.EMPLOYEES' COMPENSATION COMMISSION
Facts: Gabriel M. Sepulveda who was a grades school teacher and
who died on December 6, 1975 due to an ailment diagnosed as
myocardial infarction after having been in the employ of the
Department of Education and Culture for more than thirty (30) years.
Held: Compensable. The petitioner presented as part of her
evidence the certification of the attending physician of Gabriel M.
Sepulveda which states that the asthmatic condition was contracted
by Gabriel M. Sepulveda due to his occupation as a schoolroom
teacher assigned to one of the remotest parts of Tangub City way
back in 1945 and that this asthmatic attack came on and off
depending upon the stress of his work
L. Parkinson’s Disease
YOSORES vs. EMPLOYEE'S COMPENSATION COMMISSION
Facts: Rodolfo Yosores was employed by the GSIS for a period of
twenty-five (25) years. He was doing electrical work during the first ten
(10) years until his assignment in 1973 as Field Collection Officer, doing
the rounds of GSIS mortagees in different areas of Metro Manila in the
performance of his collection work. On July 31, 1988, Yosores retired
from the GSIS for total and permanent disability. The cause of his
disability, as indicated in his claim papers was Parkinson's Disease.
Held: Compensable. The nature and working conditions of Yosores' job,
for it is not improbable that there were factors affecting his work as a field
collection officer, coupled with the hypertension which he contracted in
the course of his employment, which may have constituted "predisposing
or exciting factors" in the development of the disease.
M. Inguinal hernia
ERESE vs. EMPLOYEES' COMPENSATION COMMISSION
Facts: Felipe U. Erese filed a claim for disability compensation under
Presidential Decree No. 626 with the GSIS in 1976. The Assistant
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General Manager of the Medicare and Employment Compensation
Department denied his application for benefits on the ground that his
ailments, Inguinal Hernia, Error of Refraction, Central Retinopathy
and Chronic Otitis Media, are not occupational diseases nor has he
substantially proven that said ailments directly resulted from his
occupation as Supervising Prison Guard.
Held: The GSIS is correct. Erese's ailments could not necessarily
and directly have been the result of the risks and hazards of his
occupation as prison guard. Hence the ailments may not be
considered occupational. And in the absence of proof, we could not
conceive or arrive at a logical explanation or probability that they
arose out of his employment.
N. Senile Cataract
JARILLO vs. EMPLOYEES' COMPENSATION COMMISSION
Facts: Perfecto Jarillo—born on February 27, 1916—entered
government service on January 1, 1955 as a temporary laborer in
the Department of Engineering, Quezon City. On July 1, he was
designated as construction worker in the same office. anuary 24,
1975, he was admitted to the UST, a cataract operation was
performed on his right eye on January 30, 1979. On September 13 to
28, 1977, petitioner was again hospitalized where he was operated
on for lens extraction, intracapsular with peripheral iridectomy, this
time on his left eye. Prior to this second operation or on April 15,
1977 (p. 9, ECC rec.), petitioner filed a claim for disability benefits
under P.D. No. 626. This claim was denied.
Held: Entitled for compensation. From the nature of petitioner's duties,
there is no doubt that the risk of contracting cataract was increased by
his working conditions. His duties as construction worker keeps him on
the road seventy percent (70%) of his working time, and ninety-five
percent (95%) outdoors. This must have exposed him to the sun's glare
and heat, as well as to excessive dirt and dust.
Progression/ Deterioration of Illness/ Injury
•
Where the illness or injury is shown to have arisen in the course
of employment, every natural consequence that flows from the
illness or injury shall be deemed employment-related, hence
compensable.
ART. 167. Definition of terms.- As used in this Title, unless the context
indicates otherwise:
(a) "Code" means the Labor Code of the Philippines instituted under
Presidential Decree Numbered four hundred forty-two, as amended.
(b) "Commission" means the Employees’ Compensation Commission
created under this Title.
(c) "SSS" means the Social Security System created under Republic Act
Numbered Eleven hundred sixty-one, as amended.
(d) "GSIS" means the Government Service Insurance System created
under Commonwealth Act Numbered One hundred eighty-six, as
amended.
(e) "System" means the SSS or GSIS, as the case may be.
(f) "Employer" means any person, natural or juridical, employing the
services of the employee.
(g) "Employee" means any person compulsorily covered by the GSIS
under Commonwealth Act Numbered One hundred eighty-six, as
amended, including the members of the Armed Forces of the Philippines,
and any person employed as casual, emergency, temporary, substitute
or contractual, or any person compulsorily covered by the SSS under
Republic Act Numbered Eleven hundred sixty-one, as amended.
(h) "Person" means any individual, partnership, firm, association, trust,
corporation or legal representative thereof.
(i) "Dependent" means the legitimate, legitimated or legally adopted or
acknowledged natural child who is unmarried, not gainfully employed,
and not over twenty-one (21) years of age or over twenty-one (21) years
of age provided he is incapacitated and incapable of self-support due to
a physical or mental defect which is congenital or acquired during
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minority; the legitimate spouse living with the employee and the parents
of said employee wholly dependent upon him for regular support.
chanroblesvirtuallawlibrary
(r) "Related benefit" means all payments made under this Title for
appliances and supplies.
(s) "Appliances" means crutches, artificial aids and other similar devices.
(j) "Beneficiaries" means the dependent spouse until he/she remarries
and dependent children, who are the primary beneficiaries. In their
absence, the dependent parents and subject to the restrictions imposed
on dependent children, the illegitimate children and legitimate
descendants, who are the secondary beneficiaries: Provided, That the
dependent acknowledged natural child shall be considered as a primary
beneficiary when there are no other dependent children who are qualified
and eligible for monthly income benefit.
(k) "Injury" means any harmful change in the human organism from any
accident arising out of and in the course of the employment.
(l) "Sickness" means any illness definitely accepted as an occupational
disease listed by the Commission, or any illness caused by employment
subject to proof that the risk of contracting the same is increased by
working conditions. For this purpose, the Commission is empowered to
determine and approve occupational diseases and work-related illnesses
that may be considered compensable based on peculiar hazards of
employment.
(m) "Death" means loss of life resulting from injury or sickness.
(n) "Disability" means loss or impairment of a physical or mental function
resulting from injury or sickness.
(o) "Compensation" means all payments made under this Title for income
benefits and medical or related benefits.
(p) "Income benefit" means all payments made under this Title to the
providers of medical care, rehabilitation services and hospital care.
chanroblesvirtuallawlibrary
(q) "Medical benefit" means all payments made under this Title to the
providers of medical care, rehabilitation services and hospital care.
chanroblesvirtuallawlibrary
(t) "Supplies" means medicine and other medical, dental or surgical
items.
(u) "Hospital" means any medical facility, government or private,
authorized by law, an active member in good standing of the Philippine
Hospital Association and accredited by the Commission.
(v) "Physician" means any doctor of medicine duly licensed to practice in
the Philippines, an active member in good standing of the Philippine
Medical Association and accredited by the Commission.
(w) "Wages" or "Salary", insofar as they refer to the computation of
benefits defined in Republic Act No. 1161, as amended, for SSS and
Presidential Decree No. 1146, as amended, for GSIS, respectively,
except that part in excess of Three Thousand Pesos.
(x) "Monthly salary credit" means the wage or salary base for
contributions as provided in Republic Act Numbered Eleven hundred
sixty-one, as amended, or the wages or salary.
(y) "Average monthly salary credit" in the case of the SSS means the
result obtained by dividing the sum of the monthly salary credits in the
sixty-month period immediately following the semester of death or
permanent disability by sixty (60), except where the month of death or
permanent disability falls within eighteen (18) calendar months from the
month of coverage, in which case, it is the result obtained by dividing the
sum of all monthly salary credits paid prior to the month of contingency
by the total number of calendar months of coverage in the same period.
chanroblesvirtuallawlibrary
(z) "Average daily salary credit" in the case of the SSS means the result
obtained by dividing the sum of the six (6) highest monthly salary credits
in the twelve-month period immediately preceding the semester of
sickness or injury by one hundred eighty (180), except where the month
of injury falls within twelve (12) calendar months from the first month of
coverage, in which case it is the result obtained by dividing the sum of all
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monthly salary credits by thirty (30) times the number of calendar months
of coverage in the period.
In the case of the GSIS, the average daily salary credit shall be the
actual daily salary or wage, or the monthly salary or wage divided by the
actual number of working days of the month of contingency.
(aa) "Quarter" means a period of three (3) consecutive months ending on
the last days of March, June, September and December.
(bb) "Semester" means a period of two consecutive quarters ending in
the quarter of death, permanent disability, injury or sickness.
life insurance benefit administered by the System shall be subject to
compulsory coverage.
1. Covered Employers
• All employers, whether belonging to the public or private
sector are covered.
• Public Sector: covered by GSIS comprising the National
Government, Government owned/controlled
corporations, Philippine Tuberculosis society, The
Philippine National Red Cross, and Philippine Veterans
Bank.
• Private Sector: Covered by SSS.
2. Covered Employees
(cc) "Replacement ratio" - The sum of twenty percent and the quotient
obtained by dividing three hundred by the sum of three hundred forty and
the average monthly salary credit.
•
•
(dd) "Credited years of service" -For a member covered prior to January,
1975, nineteen hundred seventy-five minus the calendar year of
coverage, plus the number of calendar years in which six or more
contributions have been paid from January, 1975 up to the calendar year
containing the semester prior to the contingency. For a member covered
on or after January, 1975, the number of calendar years in which six or
more contributions have been paid from the year of coverage up to the
calendar year containing the semester prior to the contingency.
GR; All employees not over 60 years old, whether private or
public.
EXP:employee who is over (60) years of age and paying
contributions to qualify for the retirement or life insurance
benefit administered by the System shall be subject to
compulsory coverage.
ART. 169. Foreign employment. - The Commission shall ensure
adequate coverage of Filipino employees employed abroad, subject to
regulations as it may prescribe.
Working Abroad
(ee) "Monthly income benefit" means the amount equivalent to one
hundred fifteen percent of the sum of the average monthly salary credit
multiplied by the replacement ratio, and one and a half percent of the
average monthly salary credit for each credited year of service in excess
of ten years: Provided, That the monthly income benefit shall in no case
be less than two hundred fifty pesos.
•
Filipinos working abroad for an employer who carries on in the
Philippines any trade, business, industry are covered, and
entitled to same benefits to employees working in the
Philippines.
Chapter II
COVERAGE AND LIABILITY
ART. 168. Compulsory coverage. - Coverage in the State Insurance
Fund shall be compulsory upon all employers and their employees not
over sixty (60) years of age: Provided, That an employee who is over
(60) years of age and paying contributions to qualify for the retirement or
ART. 170. Effective date of coverage. - Compulsory coverage of the
employer during the effectivity of this Title shall take effect on the first
day of his operation, and that of the employee, on the date of his
employment.
Effective Date of Coverage
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•
First day of operation but not earlier than January 1, 1975.
Art. 171. Registration. Each employer and his employees shall register
with the System in accordance with its regulations.
1. Registration Procedure (Rule II of the Amended Rules on
Employees’ Compensation)
Section1 – Requirement
a. Every employer shall register with the System by
accomplishing the prescribed forms
b. Every employee shall be registered with the System through
his employer by accomplishing the prescribed forms
Section 2 – GSIS (applicable to public sector)
a. employer operating before January 1, 1975 – register not
later than March 31, 1975
b. employer operating on or after January 1, 1975 – register
within one month from the first day of operation
Section 3 – SSS (applicable to private sector)
a. employer already registered – need not register again;
automatically registered
b. employer not yet registered – register not later than the first
day of operation
c. employee already registered – need not register again;
automatically registered
d. employee not yet registered – register not later than the date
of employment
e. only one registration is needed for SSS, Medicare and
Employee’s Compensation
Guidelines in reporting an unregistered employee by
employer
a. every employee already reported need not be reported
again; automatically reported
b. newly hired employee – reported by his employer not later
than 30 days from date of employment
c. every employee shall be deemed as having been duly
reported for coverage if the System has received a report or
written communication about him from his employer or an
EC contribution paid in his name by his employer, before a
compensable contingency occurs
2. When An Employee is Deemed Reported
 When the SSS or GSIS has received a report or written
communication about him from his employer and Employees’
Compensation contribution paid in his name before a
compensable contingency occurs
3. Effect of Failure to Report
 Employer – fine (P1,000-P10,000) and/or imprisonment for
duration of the violation or non-compliance or until such time that
rectification of the violation has been made, at the discretion of
the Court
 Compensable contingency occurs after 30 days and before the
System receives any report for coverage about the employee or
EC contribution on his behalf – employer liable to System for the
lump sum equivalent to the benefits to which he or his
dependents may be entitled
Art. 172. Limitation of liability. The State Insurance Fund shall be
liable for compensation to the employee or his dependents, except when
the disability or death was occasioned by the employee’s intoxication,
willful intention to injure or kill himself or another, notorious negligence,
or otherwise provided under this Title.
1. Factors That Bar Compensability
a. Intoxication
b. Willful intention to injure or kill himself or another
c. Notorious negligence
1.1. Intoxication
 Person’s condition in being under the influence of liquor or
prohibited drugs to the extent that his acts, words or conduct is
impaired visibly, as to prevent him from physically and mentally
engaging in the duties of his employment
 Degree must be such that it rendered the employee incapable of
doing his work
 Accident or injury must be shown by clear and convincing proof
that it arose out of his drunken condition and not because of his
work
 Burden of proof – party who raises drunkenness as a defense
1.2. Willful Intention to Injure/Kill Himself or Another
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


Deliberate intent on the part of the employee to inflict injuries to
himself or another
Reason – the resulting injury, disability or death was not caused
by the employment but by the employee’s own voluntary act
Applies only work-connected injury, disability or death
1.3. Notorious Negligence
 Something more than mere or simple negligence or contributory
negligence
 Deliberate act of the employee to disregard his own personal
safety
 Failure to observe any or slight care
 Tantamount to gross negligence
 Must be shown by clear and convincing proof that it was the
cause of the injury
 Disobedience to rules, orders, and/or prohibition does not per se
constitute notorious negligence, if no intention can be attributed
to the injured to end his life
Art. 173. Extent of liability. Unless otherwise provided, the liability of
the State Insurance Fund under this Title shall be exclusive and in place
of all other liabilities of the employer to the employee, his dependents or
anyone otherwise entitled to receive damages on behalf of the employee
or his dependents. The payment of compensation under this Title shall
not bar the recovery of benefits as provided for in Section 699 of the
Revised Administrative Code, Republic Act Numbered Eleven hundred
sixty-one, as amended, Republic Act Numbered Forty-eight hundred
sixty-four as amended, and other laws whose benefits are administered
by the System or by other agencies of the government. (As amended by
Presidential Decree No. 1921).
1. Exclusiveness of Liability
 Liability of State Insurance Fund is exclusive and in place of all
other liabilities which the employer may have to the employee,
his dependents or anyone entitled to receive damages in behalf
of the employee or his dependents
 Relieves the employer from any further obligation to directly pay
compensation benefits to its employees for work-connected
sickness or injury
Facts: Prior to the effectivity of the Labor Code, it had been the practice
of San Miguel Corporation to grant to its salesmen and helpers suffering
work-connected sickness or disability, their basic salary and other
benefits, the aggregate value of which was higher than the
corresponding benefits under the Workmen’s Compensation Act. When
the new compensation scheme under the Labor Code took effect, San
Miguel discontinued the practice. A complaint was filed against San
Miguel to pay the difference in monetary benefits.
Issue: Whether or not San Miguel can be compelled to pay the
difference
Decision: No. San Miguel cannot be compelled to pay the difference.
Ratio: The Labor Code has established a new compensation scheme in
place of the old scheme. The new compensation has relieved an
employer from the obligation of directly paying compensation to his
employees for work-connected illness or injury.
2.
Recovery Under Other Laws
 Art. 173 – payment of compensation under this Title shall nor bar
recovery of benefits as provided for in:
o Sec. 699 of Revised Administrative Code
o RA 1161, as amended
o RA 610, as amended
o RA 4864, as amended
o Other laws whose benefits are administered by the
System or by other agencies of the government


Q: Does it mean that the employee can recover from both the
Labor Code and other specified laws?
A: No (Rule IV of the Amended Rules on Employees’
Compensation)
SEC. 2. Exclusiveness – (a) Whenever other laws provide similar
benefits for the same contingency covered by these Rules, the
employee who qualifies for the benefits shall have the option to
choose under which law will be paid to him. However if benefits
chosen by law are less than the benefit provided under these
Rules – Employees’ Compensation to pay only the difference in
benefits
San Miguel Corporation vs. NLRC (164 SCRA 372)
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(b) The employee shall not be qualified to avail himself at the
same time of similar benefits provided by different laws, except
the difference in benefits
3. The Labor Code vis-à-vis The Civil Code
Q: Can the injured employee avail of compensation benefits under the
Labor Code and sue the employer for damages under the Civil Code?
A: 3 divergent opinions by several amici curae (Floresca vs. Philex
Mining Corporation)
a. Injured employee (or heirs in case of death) may initiate an
action for damages on the basis of negligence of the employer
pursuant to the Civil Code
b. The remedy of an employee for work-connected injury or
accident is exclusively restricted to seeking the limited
compensation provided under the Workmen’s Compensation Act
c. The employee or his heirs can choose on whether to avail of the
limited compensation under the Workmen’s Compensation Act or
sue for higher damages under the Civil Code by reason of the
employer’s negligence. (Choice is alternative, not cumulative)
Facts: Several employees of Philex Mining died when one of its mining
tunnels caved in. As a result, the heirs of the employees filed for claims
for workmen’s compensation. The claimants were paid in full except one
who decided to be paid in installments. In the meantime, a committee
was created to investigate the accident. It found out that there was
criminal negligence and violation of law on the part of Philex. When the
heirs found out about the report, they filed with the regular court against
Philex for damages on the ground that it deliberately failed to take the
required precautions for the due protection of the lives of its men working
underground.
Issue: Whether or not the heirs can avail cumulatively of both actions
Decision: Yes. The heirs can avail cumulatively of both actions.
Ratio: The case at bar is an exception to the rule that the remedies
cannot be availed of cumulatively because the heirs became cognizant
of the fact that Philex has been remiss in its contractual obligations with
the deceased miners only after receiving compensation under the
Workmen’s Compensation Act. However, the payments received under
the said act should be deducted from the damages that may be decreed
in their favor.
Ysmael Maritime Corporation vs. Avelino (151 SCRA 333)
3.
Facts: Rolando Lim, a licensed second mate, was on board the vessel
M/S Rajah when the same ran around and sank, resulting to his death. A
claim for death benefits was files by the heirs before the Workmen’s
Compensation Commission, for which they were paid P4,160.00.
Claiming that the death was caused by the negligence of the company,
the heirs subsequently filed an action for damages before the regular
courts.
Issue: Whether or not the action will prosper
Distinction Between Compensation and Damages
Compensation
Given to mitigate the harshness
and insecurity of industrial life for
the workman and his family
Entitlement exists so long as death,
injury or illness is work-connected
regardless
of
negligence
of
employer
Damages
Given in order to vindicate a
wrongful invasion of a right
Recoverable by one who has
sustained injury either in person,
property pr relative rights, through
the act or default of another
Decision: No. The action will not prosper.
Ratio: The heirs have already opted to avail of the compensation
benefits under the Workmen’s Compensation Act
Floresca vs. Philex Mining (136 SCRA 141)
Art. 174. Liability of third party/ies.
a. When the disability or death is caused by circumstances creating
a legal liability against a third party, the disabled employee or the
dependents, in case of his death, shall be paid by the System
under this Title. In case benefit is paid under this Title, the
System shall be subrogated to the rights of the disabled
employee or the dependents, in case of his death, in accordance
with the general law.
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b. Where the System recovers from such third party damages in
excess of those paid or allowed under this Title, such excess
shall be delivered to the disabled employee or other persons
entitled thereto, after deducting the cost of proceedings and
expenses of the System.
1. Injury or Death Caused by a Third Party
Third Party
 Any person who is not the employer of the injured employee
 Injury or death caused by a third party is compensable if all the
requisites for compensability are met, but claimant cannot
receive payment twice for the same injury
Art. 175. Deprivation of the benefits. Except as otherwise provided
under this Title, no contract, regulation or device whatsoever shall
operate to deprive the employee or his dependents of any part of the
income benefits and medical or related services granted under this Title.
Existing medical services being provided by the employer shall be
maintained and continued to be enjoyed by their employees.
1. Benefits Under The Employees’ Compensation Law
Form:
a. Income
b. Services
Consists of:
a. Medical services, appliances and supplies
b. Rehabilitation services
c. Permanent total disability
d. Permanent partial disability
e. Death
f. Funeral



The law guarantees the right to full enjoyment of compensation
benefits
To ensure that the employee or dependents get the full amount
that he is entitled to, the law exempts compensation benefits
from taxes, attachment, garnishment, levy or seizure
Prohibited:
o Retention or deduction of any amount from the
compensation

o Transfer of compensation benefits to another
Null and void:
o Any contract, regulation or device which operate to
deprive the employee or his dependents of any part of
the income benefits and medical or related services
Chapter III
ADMINISTRATION
Art. 176. Employees’ Compensation Commission.
a. To initiate, rationalize, and coordinate the policies of the
employees’
compensation
program,
the
Employees’
Compensation Commission is hereby created to be composed of
five ex-officio members, namely: the Secretary of Labor and
Employment as Chairman, the GSIS General Manager, the SSS
Administrator, the Chairman of the Philippine Medical Care
Commission, and the Executive Director of the ECC Secretariat,
and two appointive members, one of whom shall represent the
employees and the other, the employers, to be appointed by the
President of the Philippines for a term of six years. The
appointive member shall have at least five years experience in
workmen’s compensation or social security programs. All
vacancies shall be filled for the unexpired term only. (As
amended by Section 19 [c], Executive Order No. 126)
b. The Vice Chairman of the Commission shall be alternated each
year between the GSIS General Manager and the SSS
Administrator. The presence of four members shall constitute a
quorum. Each member shall receive a per diem of two hundred
pesos for every meeting that is actually attended by him,
exclusive of actual, ordinary and necessary travel and
representation expenses. In his absence, any member may
designate an official of the institution he serves on full-time basis
as his representative to act in his behalf. (As amended by
Section 2, Presidential Decree No. 1368)
c.
The general conduct of the operations and management
functions of the GSIS or SSS under this Title shall be vested in
its respective chief executive officers, who shall be immediately
responsible for carrying out the policies of the Commission.
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d. The Commission shall have the status and category of a
government corporation, and it is hereby deemed attached to the
Department of Labor and Employment for policy coordination
and guidance. (As amended by Section 2, Presidential Decree
No. 1368)
1. Composition of Employee’s Compensation Commission
a. Chairman
– Secretary of Labor and Employment
b. Ex-Officio Members
– Executive Director of ECC
– GSIS General Manager
– SSS Administrator
– Chairman of Medicare Commission
c. Appointive Members
– Employees’ Representative
– Employers’ Representative
e. To make the necessary actuarial studies and calculations
concerning the grant of constant help and income benefits for
permanent disability or death and the rationalization of the
benefits for permanent disability and death under the Title with
benefits payable by the System for similar contingencies:
Provided, That the Commission may upgrade benefits and add
new ones subject to approval of the President: and Provided,
further, That the actuarial stability of the State Insurance Fund
shall be guaranteed: Provided, finally, That such increases in
benefits shall not require any increases in contribution, except as
provided for in paragraph (b) hereof; (As amended by Section 3,
Presidential Decree No. 1641)
f.
2. Qualification
 Appointive members – at least five (5) years experience in
workmen’s compensation or social security program
3. Term of Office
 Appointive members – six (6) years
 Vacancies – filled for unexpired term only
Art. 177. Powers and duties. The Commission shall have the following
powers and duties:
a. To assess and fix a rate of contribution from all employers;
b. To determine the rate of contribution payable by an employer
whose records show a high frequency of work accidents or
occupational diseases due to failure by the said employer to
observe adequate safety measures;
c.
To approve rules and regulations governing the processing of
claims and the settlement of disputes arising therefrom as
prescribed by the System;
d. To initiate policies and programs toward adequate occupational
health and safety and accident prevention in the working
environment, rehabilitation other than those provided for under
Article 190 hereof, and other related programs and activities, and
to appropriate funds therefor; (As amended by Section 3,
Presidential Decree No. 1368)
To appoint the personnel of its staff, subject to civil service law
and rules, but exempt from WAPCO law and regulations;
g. To adopt annually a budget of expenditures of the Commission
and its staff chargeable against the State Insurance Fund:
Provided, That the SSS and GSIS shall advance on a quarterly
basis, the remittances of allotment of the loading fund for the
Commission’s operational expenses based on its annual budget
as duly approved by the Department of Budget and
Management; (As amended by Section 3, Presidential Decree
No. 1921)
h. To have the power to administer oath and affirmation, and to
issue subpoena and subpoena duces tecum in connection with
any question or issue arising from appealed cases under this
Title;
i.
To sue and be sued in court;
j.
To acquire property, real or personal, which may be necessary
or expedient for the attainment of the purposes of this Title;
k.
To enter into agreements or contracts for such services and as
may be needed for the proper, efficient and stable administration
of the program;
l.
To perform such other acts as it may deem appropriate for the
attainment of the purposes of the Commission and proper
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enforcement of the provisions of this Title. (As amended by
Section 18, Presidential Decree No. 850)
1. Power to Approve Additional Occupational Diseases
 ECC has the power to determine and approve additional
occupational diseases and work-related illnesses with specific
criteria based on peculiar hazards of employment
Art. 178. Management of funds. All revenues collected by the System
under this Title shall be deposited, invested, administered and disbursed
in the same manner and under the same conditions, requirements and
safeguards as provided by Republic Act Numbered eleven hundred sixtyone, as amended, with regard to such other funds as are thereunder
being paid to or collected by the SSS and GSIS, respectively: Provided,
That the Commission, SSS and GSIS may disburse each year not more
than twelve percent of the contribution and investment earnings collected
for operational expenses, including occupational health and safety
programs, incidental to the carrying out of this Title.
1. Disbursement Limitation for Operational Expenses
 Twelve percent (12%) of the contributions and investment
earning collected
Art. 179. Investment of funds. Provisions of existing laws to the
contrary notwithstanding, all revenues as are not needed to meet current
operational expenses under this Title shall be accumulated in a fund to
be known as the State Insurance Fund, which shall be used exclusively
for payment of the benefits under this Title, and no amount thereof shall
be used for any other purpose. All amounts accruing to the State
Insurance Fund, which is hereby established in the SSS and GSIS,
respectively, shall be deposited with any authorized depository bank
approved by the Commission, or invested with due and prudent regard
for the liquidity needs of the System. (As amended by Section 4,
Presidential Decree No. 1368)
1. The State Insurance Fund
 Comprised of all revenues that are not needed to meet current
operational expenses
 Cannot be used for any purpose than payment of the employee’s
compensation benefits

Deposited with any authorized depositary bank approved by the
Employees’ Compensation Commission or invested with due
regard for the liquidity needs of the System
Art. 180. Settlement of claims. The System shall have original and
exclusive jurisdiction to settle any dispute arising from this Title with
respect to coverage, entitlement to benefits, collection and payment of
contributions and penalties thereon, or any other matter related thereto,
subject to appeal to the Commission, which shall decide appealed cases
within twenty (20) working days from the submission of the evidence.
1. Original and Exclusive Jurisdiction
 Disputes relating to coverage, entitlement to benefits, collection
and payment of contributions and penalties thereon or any
matter related thereto
 GSIS – employees under the public sector
 SSS – employees under the private sector
2. Appellate Jurisdiction
 Employee’s Compensation Commission
 Within thirty (30) calendar days from receipt of decision
Art. 181. Review. Decisions, orders or resolutions of the Commission
may be reviewed on certiorari by the Supreme Court on question of law
upon petition of an aggrieved party within ten (10) days from notice
thereof.
1. Appeal to the Supreme Court
 Pure questions of law by way of appeal by certiorari under Rule
45 of the rules of Court
 Within 15 days from notice of final order or resolution appealed
from
Art. 182. Enforcement of decisions.
a. Any decision, order or resolution of the Commission shall
become final and executory if no appeal is taken therefrom within
ten (10) days from notice thereof. All awards granted by the
Commission in cases appealed from decisions of the System
shall be effected within fifteen days from receipt of notice.
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b. In all other cases, decisions, orders and resolutions of the
Commission which have become final and executory shall be
enforced and executed in the same manner as decisions of the
Court of First Instance, and the Commission shall have the
power to issue to the city or provincial sheriff or to the sheriff
whom it may appoint, such writs of execution as may be
necessary for the enforcement of such decisions, orders or
resolutions, and any person who shall fail or refuse to comply
therewith shall, upon application by the Commission, be
punished by the proper court for contempt.
1. Payment of Awards
 Decisions, orders or resolutions of the ECC en banc shall be
complied with by the SSS or GSIS within fifteen (15) days from
receipt
portion thereof from the wages or salaries of the employees shall
be null and void.
d. When a covered employee dies, becomes disabled or is
separated from employment, his employer’s obligation to pay the
monthly contribution arising from that employment shall cease at
the end of the month of contingency and during such months that
he is not receiving wages or salary.
1. Payment of Premium Contributions – Sole Obligation of Employer
 Payment of premium contributions for employees’ compensation
– sole obligation of employer
 Any contract or device for the deduction of any portion thereof
from the wages of the employee – null and void
 Contributions – non-refundable
2. Enforcement of Other Decisions
 Same manner as decisions of the RTC
 Employees’ Compensation Commission (ECC)
o Power to issue to the City or Provincial Sheriff or to the
Sheriff it may appoint, such writs of execution as may be
necessary for the enforcement of such decisions, orders
or resolutions
2. Effect of Death or Separation from Employment
 Employer’s obligation to pay the monthly contribution ceases in
the last day of the month of contingency
Chapter IV
CONTRIBUTIONS
Art. 184. Government guarantee. The Republic of the Philippines
guarantees the benefits prescribed under this Title, and accepts general
responsibility for the solvency of the State Insurance Fund. In case of
any deficiency, the same shall be covered by supplemental
appropriations from the national government.
Art. 183. Employers’ contributions.
a. Under such regulations as the System may prescribe, beginning
as of the last day of the month when an employee’s compulsory
coverage takes effect and every month thereafter during his
employment, his employer shall prepare to remit to the System a
contribution equivalent to one percent of his monthly salary
credit.
b. The rate of contribution shall be reviewed periodically and
subject to the limitations herein provided, may be revised as the
experience in risk, cost of administration and actual or
anticipated as well as unexpected losses, may require.
c.
Contributions under this Title shall be paid in their entirety by the
employer and any contract or device for the deductions of any
3. Effect of Disability
 Employer’s obligation suspended during the months that he is
not receiving salary or wages
1. Purpose of the Law
 Assure that the employee is paid the benefits due him if the
State Insurance Fund runs out of money
Chapter V
MEDICAL BENEFITS
Art. 185. Medical services. Immediately after an employee contracts
sickness or sustains an injury, he shall be provided by the System during
the subsequent period of his disability with such medical services and
appliances as the nature of his sickness or injury and progress of his
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recovery may require, subject to the expense limitation prescribed by the
Commission.
1. Scope of Medical Services
a. Ward services during confinement in an accredited hospital
b. Subsequent domiciliary care by an accredited physician
c. Medicines
d. Ambulatory services in an accredited hospital, in case of injury
2. Condition for Entitlement
a. Employee should have duly reported to the SSS or GSIS
b. He sustains an injury or contracts sickness
c. The System has been duly notified of the injury or sickness
3. Period of Entitlement
 Beginning with the first day of injury or sickness, during the
subsequent period of his disability, and as the progress of his
recovery may require, subject to the periodic submission of a
medical report on his disability certified by his physicians
4.
5.
Meaning of Ward Services
 Ward – hospital room that can accommodate six (6) or more
patients
 Covers all of the services an in-patient would ordinarily receive in
a hospital, such as:
a. Bed in a ward (6 beds/room)
b. All meals, including special diets
c. Regular nursing services
d. Medicines furnished by the hospital
e. Laboratory services such as blood and urine tests
f. Radiology services such as x-rays
g. Medical supplies such as splints and casts
h. Use of appliances and equipment furnished by the
hospital, such as wheelchairs, crutches and braces
i. Anesthetic services
j. Operating room charges
k. Surgery
l. Doctor’s services
Not Included in Ward Services
a. Extra charge for more comfortable accommodation e.g. private
and semi-private rooms
b. Personal comfort or convenience e.g. charges for the use of a
telephone, radio or television
c. Private duty nurse
6.
Medicines
 Provided by the hospital at a cost not exceeding the retail prices
prevailing in local drugstores
7.
Payment
 Made directly to the providers of the medical services in such
amount as are prevailing in the community for similar services or
as provided for in the Rules, whichever is less
Art. 186. Liability. The System shall have the authority to choose or
order a change of physician, hospital or rehabilitation facility for the
employee, and shall not be liable for compensation for any aggravation
of the employee’s injury or sickness resulting from unauthorized changes
by the employee of medical services, appliances, supplies, hospitals,
rehabilitation facilities or physicians.
1. Change of Medical services
 Should be approved by the SSS or GSIS, otherwise, System
cannot be held liable for compensation for any aggravation of the
injury or sickness resulting from any unauthorized changes
Art. 187. Attending physician. Any physician attending an injured or
sick employee shall comply with all the regulations of the System and
submit reports in prescribed forms at such time as may be required
concerning his condition or treatment. All medical information relevant to
the particular injury or sickness shall, on demand, be made available to
the employee or the System. No information developed in connection
with treatment or examination for which compensation is sought shall be
considered as privileged communication.
1. Obligations of Attending Physician
a. Comply with all the regulations of the SSS or the GSIS
b. Submit medical reports using the prescribed form
2. Medical Information Not Privileged Communication
 Employees’ compensation cases
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
Art. 187 – “No information developed in connection with
treatment or examination for which compensation is sought shall
be considered as privileged communication”
Art. 188. Refusal of examination or treatment. If the employee
unreasonably refuses to submit to medical examination or treatment, the
System shall stop the payment of further compensation during such time
as such refusal continues. What constitutes an unreasonable refusal
shall be determined by the System which may, on its own initiative,
determine the necessity, character and sufficiency of any medical
services furnished or to be furnished.
1. Suspension of Compensation Payments
 Refusal of an employee to submit to medical examination or
treatment should be unreasonable
 “unreasonable refusal” – matter to be determined by SSS or
GSIS
Art. 189. Fees and other charges. All fees and other charges for
hospital services, medical care and appliances, including professional
fees, shall not be higher than those prevailing in wards of hospitals for
similar services to injured or sick persons in general and shall be subject
to the regulations of the Commission. Professional fees shall only be
appreciably higher than those prescribed under Republic Act Numbered
sixty-one hundred eleven, as amended, otherwise known as the
Philippine Medical Care Act of 1969.
1. Fees and Charges
FOR HOSPITAL CONFINEMENT
 Injury – benefit not to exceed actual cost of ward services in an
accredited hospital
 Sickness – benefit not to exceed the actual cost of ward in an
accredited hospital equipped with facilities necessary for the
treatment of the disease
FOR DOMICILIARY CARE
 Benefit not to exceed P50.00 for the first visit and P50.00 for
each subsequent visit
FOR AMBULATORY SERVICES

Benefit not to exceed P60.00/day exclusive of drugs and
medicines
FOR SURGICAL SERVICES
 Surgical expense benefit
1. Surgeon’s fee according to the ECC Relative Value
Study
2. Anesthesiologist’s fee ordinarily not exceeding 25% of
the surgeon’s fee
3. Operating fee ordinarily not exceeding 25% of the
surgeon’s fee
 Surgeon’s fee – paid to surgeon who performed the operation;
anesthesiologist’s fee – anesthesiologist; conditions:
1. Only one surgeon paid per operation
2. Only one anesthesiologist, if any, paid per operation
3. Local anesthesia, other than regional nerve block
anesthesia shall not be compensable
 Operating room fee – paid by SSS or GSIS only for surgical
procedure done in the operating-diagnostic-therapeutic room
complex of the accredited hospital
Art. 190. Rehabilitation services.
a. The System shall, as soon as practicable, establish a continuing
program, for the rehabilitation of injured and handicapped
employees who shall be entitled to rehabilitation services, which
shall consist of medical, surgical or hospital treatment, including
appliances if they have been handicapped by the injury, to help
them become physically independent.
b. As soon as practicable, the System shall establish centers
equipped and staffed to provide a balanced program of remedial
treatment, vocational assessment and preparation designed to
meet the individual needs of each handicapped employee to
restore him to suitable employment, including assistance as may
be within its resources, to help each rehabilitee to develop his
mental, vocational or social potential.
1. Meaning of Rehabilitation
 Process by which there is provided a balanced program of
remedial treatment, vocational assessment, and preparation
designed to meet the individual needs of each handicapped
employee to restore him to suitable employment, including
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assistance as may be within its resources to help each
rehabilitee to develop his mental, vocational, or social potential
2. Conditions for Rehabilitation
a. Employee has been reported to the SSS or GSIS
b. He sustains a permanent disability as a result of a compensable
injury or sickness
c. He has to been placed in suitable employment
3. Period of Entitlement
 Period of disability unless suspended or terminated under any of
the following grounds:
a. Upon suitable employment
b. Upon suspension or termination of such services by the
Rehabilitation Center by self-termination
c. By self-termination
4. Extent of Services
a. Medical-surgical management
b. Hospitalization
c. Necessary appliances and supplies
d. Vocational training
e. Assistance for placement
 Transportation allowance between place of residence and the
rehabilitation facility, lunch, and dormitory allowance in
appropriate cases may be included in the extent of services
5. Limitations
 System not legally responsible when the injury, sickness,
disability, or death during the rehabilitation is occasioned by any
of the following:
a. Intoxication
b. Willful intention to injure or kill himself or another
c. Notorious negligence
Chapter VI
DISABILITY BENEFITS
Art. 191. Temporary total disability.
a. Under such regulations as the Commission may approve, any
employee under this Title who sustains an injury or contracts
sickness resulting in temporary total disability shall, for each day
of such a disability or fraction thereof, be paid by the System an
income benefit equivalent to ninety percent of his average daily
salary credit, subject to the following conditions: the daily income
benefit shall not be less than Ten Pesos nor more than Ninety
Pesos, nor paid for a continuous period longer than one hundred
twenty days, except as otherwise provided for in the Rules, and
the System shall be notified of the injury or sickness. (As
amended by Section 2, Executive Order No. 179)
b. The payment of such income benefit shall be in accordance with
the regulations of the Commission. (As amended by Section 19,
Presidential Decree No. 850)
1. Meaning of Temporary Total Disability
 Healing time, or that period of time in which the claimant
employee, by reason of the injury or sickness, is unable to
perform any kind of labor
 Situations:
a. As a result of the injury or sickness, the employee is
unable to perform any gainful occupation for a
continuous period not exceeding 120 days
b. The injury or sickness still requires medical attendance
beyond 120 days but not to exceed 240 days from the
onset of disability
 Disablement of a employee to earn wages in the same kind of
work of similar nature, that he was trained for and accustomed to
perform, or any kind of work which a person of his mentality and
attachment could do
 Disability – understood on the loss of earning capacity
o Reason: it is not the injury that is compensated but the
incapacity to work resulting in the impairment of one’s
earning capacity
2. Conditions for Entitlement to Temporary Total Disability
a. Employee duly has been reported to SSS or GSIS
b. He sustains temporary total disability as a result of the injury or
sickness
c. SSS or GSIS has been duly notified of the injury or sickness
which caused his disability
3. Purpose of the Law
 To compensate the employee for what he might have earned
during the period of treatment
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4. Period for Entitlement
 Maximum of 120 days
 Exception – injury or sickness still requires medical attendance
beyond 120 days but not to exceed 240 days from onset of
disability
2. Complete loss of sight of both eyes;
5. Relapse of Illness
 Considered independent of and separate from the period
covered by the original disability in the computation of his income
benefit for temporary total disability
5. Brain injury resulting in incurable imbecility or insanity;
and
6. Suspension of Income Benefit
 Failure of employee to submit to the SSS or GSIS a monthly
medical report on his disability certified by his attending
physician
Art. 192. Permanent total disability.
a. Under such regulations as the Commission may approve, any
employee under this Title who contracts sickness or sustains an
injury resulting in his permanent total disability shall, for each
month until his death, be paid by the System during such a
disability, an amount equivalent to the monthly income benefit,
plus ten percent thereof for each dependent child, but not
exceeding five, beginning with the youngest and without
substitution: Provided, That the monthly income benefit shall be
the new amount of the monthly benefit for all covered
pensioners, effective upon approval of this Decree.
b. The monthly income benefit shall be guaranteed for five years,
and shall be suspended if the employee is gainfully employed, or
recovers from his permanent total disability, or fails to present
himself for examination at least once a year upon notice by the
System, except as otherwise provided for in other laws, decrees,
orders or Letters of Instructions. (As amended by Section 5,
Presidential Decree No. 1641)
c.
The following disabilities shall be deemed total and permanent:
1. Temporary total disability lasting continuously for more
than one hundred twenty days, except as otherwise
provided for in the Rules;
3. Loss of two limbs at or above the ankle or wrist;
4. Permanent complete paralysis of two limbs;
6. Such cases as determined by the Medical Director of the
System
and
approved
by
the
Commission.
d. The number of months of paid coverage shall be defined and
approximated by a formula to be approved by the Commission.
1. Meaning of Permanent Total Disability
 Disablement of an employee to earn wages because of:
a. Temporary total disabilities lasting continuously for more
than 120 days (except when the disability not exceeding
240 days is declared as temporary total disability)
regardless of whether or not he loses the use of any part
of his body
b. Complete loss of sight of both eyes
c. Loss of two limbs at or above the ankle or wrist
d. Permanent complete paralysis of two limbs
e. Brain injury resulting in incurable imbecility or insanity
f. Such cases as determined by the SSS or GSIS and
approved by the ECC

A person’s disability might not emerge at one precise moment in
time but rather over a period of time
Vicente vs. Employees’ Compensation Commission (193 SCRA 190)
Facts: Vicente was formerly employed as a nursing attendant at the
Veteran Memorial Medical Center. On August 5, 1981, at the age of
forty-five (45), and having rendered more than twenty-five (25) years of
government service, he applied for optional retirement effective August
16, 1981, giving as reason therefor his inability to continue working as a
result of his partial disability. He likewise filed with the GSIS a claim for
permanent total disability with supporting Medical Certificate attesting
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that he was suffering from “Osteoarthritis, multiple; Hypertensive
Cardiovascular Disease; Cardiomegaly; and Left Ventricular
Hypertrophy.” The GSIS granted the claim but only for permanent partial
disability
Issue: Whether or not Vicente suffers from permanent total disability
Decision: Yes. Vicente suffers from permanent total disability.
Ratio: Considering that Vicente was only 45 years old when he retired
and still entitled, under good behavior, to 20 more years in service, the
approval of his optional retirement proves that he was no longer fit to
continue in his employment for optional retirement is allowed only upon
proof that the employee is already physically incapacitated to render
sound and efficient service. Further, the physicians of Veteran’s
Memorial Medical Center categorically certified that he was under
permanent total disability.
ARTICLE. 193. Permanent partial disability. – (a) Under such regulations
as the Commission may approve, any employee under this Title who
contracts sickness or sustains an injury resulting in permanent partial
disability shall, for each month not exceeding the period designated
herein, be paid by the System during such a disability an income benefit
for permanent total disability.
(b) The benefit shall be paid for not more than the period designated in
the following schedules:
Complete and permanent No. of Months
loss of the use of
One thumb – 10
One index finger – 8
One middle finger – 6
One ring finger – 5
One little finger – 3
One big toe – 6
One toe – 3
One arm – 50
One hand – 39
One foot – 31
One leg – 46
One ear – 10
Both ears – 20
Hearing of one ear – 10
Hearing of both ears – 50
Sight of one eye – 25
(c) A loss of a wrist shall be considered as a loss of the hand, and a loss
of an elbow shall be considered as a loss of the arm. A loss of an ankle
shall be considered as loss of a foot, and a loss of a knee shall be
considered as a loss of the leg. A loss of more than one joint shall be
considered as a loss of one-half of the whole finger or toe: Provided,
That such a loss shall be either the functional loss of the use or physical
loss of the member. (As amended by Section 7, Presidential Decree No.
1368).
(d) In case of permanent partial disability less than the total loss of the
member specified in the preceding paragraph, the same monthly income
benefit shall be paid for a portion of the period established for the total
loss of the member in accordance with the proportion that the
pARTICLEial loss bears to the total loss. If the result is a decimal
fraction, the same shall be rounded off to the next higher integer.
(e) In cases of simultaneous loss of more than one member or a part
thereof as specified in this Article, the same monthly income benefit shall
be paid for a period equivalent to the sum of the periods established for
the loss of the member or the part thereof. If the result is a decimal
fraction, the same shall be rounded off to the next higher integer.
(f) In cases of injuries or illnesses resulting in a permanent partial
disability
not
listed
in
the
preceding
schedule, the benefit shall be an income benefit equivalent to the
percentage of the permanent loss of the capacity to work. (As added by
Section 7, Presidential Decree No. 1368).
(g) Under such regulations as the Commission may approve, the income
benefit payable in case of permanent partial disability may be paid in
monthly pension or in lump sum if the period covered does not exceed
one year. (As added by Section 7, Presidential Decree No. 1368).
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•
•
Permanent partial disability – one where as a result of injury or
sickness, the employee suffers a lasting partial loss of the use of
any part of his body.
Conditions to entitlement of permanent partial disability benefits:
a. Te employee should have been reported to the SSS or
the GSIS
b. He sustains permanent partial disability as a result of
injury or sickness
c. The SSS or GSIS has been duly notified of the injury or
sickness which caused his disability.
•
•
Entitlement exists even if the employee is gainfully employed
and receiving his wages or salary
Period of entitlement: beginning with the first month of such
disability but not longer than the designed number of months in
the ff schedule:
Complete AND
permanent loss of the
use of
1 thumb
1 index finger
1 middle finger
1 ring finger
1 little finger
1 big toe
Any toe
1 arm
1 hand
1 foot
1 leg
1 ear
Both ears
Hearing in 1 ear
Hearing in both ears
Sight of the 1 eye
No. of months
10
8
6
5
3
6
3
50
39
31
46
10
20
10
50
25
Chapter VII
DEATH BENEFITS
ARTICLE. 194. Death. - (a) Under such regulations as the Commission
may approve, the System shall pay to the primary beneficiaries upon the
death of the covered employee under this Title, an amount equivalent to
his monthly income benefit, plus ten percent thereof for each dependent
child, but not exceeding five, beginning with the youngest and without
substitution, except as provided for in paragraph (j) of Article 167 hereof:
Provided, however, That the monthly income benefit shall be guaranteed
for five years: Provided, further, That if he has no primary beneficiary, the
System shall pay to his secondary beneficiaries the monthly income
benefit but not to exceed sixty months: Provided, finally, That the
minimum death benefit shall not be less than fifteen thousand pesos. (As
amended by Section 4, Presidential Decree No. 1921).
(b) Under such regulations as the Commission may approve, the System
shall pay to the primary beneficiaries upon the death of a covered
employee who is under permanent total disability under this Title, eighty
percent of the monthly income benefit and his dependents to the
dependents pension: Provided, That the marriage must have been
validly subsisting at the time of disability: Provided, further, That if he has
no primary beneficiary, the System shall pay to his secondary
beneficiaries the monthly pension excluding the dependents pension, of
the remaining balance of the five-year guaranteed period: Provided,
finally, That the minimum death benefit shall not be less than fifteen
thousand pesos. (As amended by Section 4, Presidential Decree No.
1921).
(c) The monthly income benefit provided herein shall be the new amount
of the monthly income benefit for the surviving beneficiaries upon the
approval of this decree. (As amended by Section 8, Presidential Decree
No. 1368).
(d) Funeral benefit. – A funeral benefit of Three thousand pesos
(P3,000.00) shall be paid upon the death of a covered employee or
permanently totally disabled pensioner. (As amended by Section 3,
Executive Order No. 179).
•
Only the primary beneficiaries are entitled to the death benefits.
In the absence of primary beneficiaries, the secondary
beneficiaries are entitled thereto. If the deceased employee has
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•
no primary or secondary beneficiaries at the time of death, the
benefit shall accrue to the Employees’ Compensation Fund.
Primary beneficiaries:
d. The covered employee’s recurrent commission of physical
violence, or grossly abusive conduct against thru surviving
spouse or common child of the spouse
e. The covered employee’s infliction of physical violence or
imposition of moral duress to compel the surviving spouse,
common child of the spouse to change their religious or
political affiliation
f. Attempt of the covered employee to corrupt or induce the
surviving spouse or common child of the spouse to engage
in prostitution, or to make them connive with the employee in
such an act of corruption or inducement
g. Drug addiction or habitual alcoholism of the covered
employee
h. Lesbianism or homosexuality of the covered employee
i. Contraction of bigamous marriage by the covered employee,
whether in the Philippines or abroad
j. Sexual infidelity or perversion of the covered employee
k. The covered employee’s act of allowing the surviving spouse
or common child to be subjected to acts of lasciviousness;
and
l. The covered employee’s act of contraction of serious STD
extramaritally
a. The legitimate spouse living with the employee at the time of
the employee’s death, until he or she remarries; and
b. The legitimate, legitimated or legally adopted the children
who are:
a. Unmarried
b. Not gainfully employed
c. Not over 21 y/o; or if over 21 y/o, he is incapable of selfsupport due to physical or mental defect which is
congenital or acquired during minority
•
Secondary beneficiaries:
a. The legitimate parents wholly dependent upon the employee
for support;
b. The legitimate descendants and illegitimate children who
are:
a. Unmarried
b. Not gainfully employed
c. Not over 21 y/o; or if over 21 y/o, he is incapable of selfsupport due to physical or mental defect which is
congenital or acquired during minority
•
•
General rule: the surviving spouse is entitled to the death benefit
only if he or she is living with the deceased employee at the time
of death
Exceptions:
a. Refusal of the covered employee to continue living with the
surviving spouse; or the employee’s abandonment of the
said spouse without justifiable or valid cause
b. Attempt on the part of the covered employee against the life
of the surviving spouse or common child of the spouse
c. Commission of an act of sexual abuse against the surviving
spouse, common child of the spouse by the covered
employee
•
Conditions for entitlement to death benefits:
a. The employee had been duly reported to the SSS or GSIS
b. He died as a result of injury or sickness
c. The SSS or GSIS has been duly notified of his death, as well
as the injury or sickness which caused his death
•
If the employee has been receiving monthly income benefit for
permanent total disability at the time of his death, the surviving
spouse must shoe that the marriage has been validly subsisting
at the time of his disability
•
Period of entitlement:
a.
Primary beneficiaries:
Income benefit shall start at the month of death and
shall continue to be paid for as long as the beneficiaries
are entitled thereto.
- Monthly income benefit – not less than 15k
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-
Thereafter, the beneficiaries shall be paid the monthly
income benefit for as long as they are entitled thereto.
b. Secondary beneficiaries:
- Payable in monthly pension
- Shall not exceed the period of 60 months
- Shall not be less than 60k
•
•
If one is declared presumptively dead after he had been reported
missing for some time, payment of death benefits shall be
reckoned form the date he was declared presumptively dead by
proper authority in accordance with law, except when the
declaration of death specifies another date, in which case,
payment of death benefits shall start from the latter date.
b.
•
•
ARTICLE. 195. Relationship and dependency. – All questions of
relationship and dependency shall be determined as of the time of death.
Meaning dependent:
a. The legitimate, legitimated or legally adopted
acknowledged natural child) the children who are:
Primary beneficiaries
- Equivalent to the monthly income benefit for permanent
total disability
- Guaranteed for 5 yrs
- Plus 10% for each dependent child not exceeding
beginning with the youngest and without substitution
- Minimum, not less than 15k
- If the employee has been receiving income benefits for
permanent total disability at the time of his death,
equivalent to 80% plus the dependent’s pension
equivalent to 10% for every dependent child but not
exceeding 5 counted from the youngest and without
substitution
Secondary beneficiaries
- 60 times the monthly income benefit of a primary
beneficiary
- Not exceeding 15k
- Payable in monthly pension
- If the employee has been receiving income benefits for
permanent total disability at the time of his death, shall
be paid monthly pension, excluding the dependent’s
pension of the remaining balance of the 5-yr guaranteed
period
Beneficiaries are still entitled to the funeral benefits of a missing
person
Chapter VIII
PROVISIONS COMMON TO INCOME BENEFITS
•
Amount of death benefit:
a.
a. Surviving spouse
b. Legitimate child who spent for the funeral expenses
c. Any other person who can show incontrovertible proof that
he shouldered the funeral expenses
a. Unmarried
b. Not gainfully employed
c. Not over 21 y/o; or if over 21 y/o, he is incapable of
self-support due to physical or mental defect which
is congenital or acquired during minority
c.
d.
•
the legitimate spouse living with the employee
the parents of said employee wholly dependent upon him for
regular support
all questions of relationship and dependency shall be determined
as of the time of death
ART. 196. Delinquent Contributions
Liabilities of Delinquent Employer
Employer who is delinquent in his contributions will be
liable to Social Security System or Government Service
Insurance System for:
a. Benefits which may have been paid to his employee or
their dependents
Funeral benefit (3k) shall be paid to 1 of the ff:
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(or
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b. 3% penalty per month from the date the contribution falls
due until paid
c. Fine of not less than P1k nor more than P10k and/or
imprisonment for the duration of the violation or noncompliance or until such time that a rectification of the
violation has been made, at the discretion of the court.
Payment by the employer of the lump sum equivalent to
his liability shall absolve him from payment of the delinquent
contributions due and payable during the calendar year of the
contingency and the penalty thereon with respect to the
employee concerned; but said employer shall still be subject to
criminal liability.
ART. 197. Second Injuries
Compensability of Second Injuries
* Second injury resulting in disability which may
suffered by an employee under permanent partial
disability, is compensable.
* If the second injury is greater, the State Insurance
Fund shall be liable for the income benefit of the
new disability.
* If the second injury is related to the previous, the
liability is only for the difference in income benefits.
ART. 198. Assignment of Benefits
Restrictions on Compensation Benefits
* Non-transferable
* Not subject to tax
* Not subject to execution, attachment, garnishment,
levy, or seizure, except in payment of a debt to the
system.
ART. 199. Earned Benefits
Accrued Employee Benefits Separate and Distinct From
Compensation Benefits
* Accrued benefits under a CBA, company policy, or
employment contract, (such as vacation leave pay or
sick leave pay), are separate and distinct from
compensation benefits.
*
They may be enjoyed simultaneously with
compensation benefits.
Effect of Gainful Employment on the Right to Compensation
* Permanent total disability compensation shall be
suspended if the employee obtains gainful
employment.
* In Permanent partial disability compensation, the
employee shall continue to receive compensation
even if gainfully employed.
ART. 200. Safety Devices
Penalty for Failure to Install Safety Devices
* Death and injury caused by failure to install and
maintain safety devices shall hold the employer
liable to pay the State Insurance Fund a penalty of
25% of the lump sum equivalent of the income
benefit due the employee concerned.
ART. 201. Prescriptive Period
Period to File Claims for Compensation
* Should be filed within 3 years from the time the
cause of action accrued, otherwise, it will be barred
by prescription
* Prescriptive period should be reckoned not from the
occurrence of the injury or illness but from the time
the employee lost his earning capacity.
* The reason is because in disability compensation, it
is not the injury or illness that is compensated, but
the incapacity to work resulting in the impairment of
one’s earning capacity.
ECC vs. SANICO
* Sanico was suffering from pulmonary tuberculosis.
He was subsequently separated from employment
and he filed a claim for compensation benefits. ECC
denied the claim on the ground that it was filed
beyond prescriptive period. Court held that the claim
has not prescribed. Period reckons not from the date
the illness first became manifest but from the time
the employee lost his earning capacity.
ART. 202. Erroneous Payment
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*
Effect of Erroneous Payment
* The SSS or GSIS is discharged from liability if it
pays income benefits in good faith:
a. To a dependent who is inferior in right to
another dependent.
b. To a dependent with whom another
dependent is entitled to share such
payment.
* SSS or GSIS will be deemed in good faith if, prior to
payment, it does not receive any notice from the
dependent who is entitled to the compensation
benefit.
ART. 203. Prohibition
Prohibited Activities
* This article prohibits any person who assists in the
filing of employees compensation claims from:
a. Demanding or charging service fees
b. Deducting
any
amount
from
the
compensation benefits in payment of his
services.
Reason for the Law
* To free the award from any liability or charge so that
the claimant may enjoy it to the fullest.
* It is the claimant who is exempt from liability for
attorney’s fees, but not the defaulting employer who
unjustly refuses to recognize the validity of the claim.
Attorney’s Fees May be Awarded
* Attorney’s fees may be awarded as an item separate
and distinct from the compensation benefits.
* Fairness dictates that the counsel should receive
compensation for his services, otherwise, it would be
entirely difficult for claimants, majority of whom are
not learned in the intricacies of law, to get good-legal
service.
ART. 204. Exemption From Levy, Tax, etc.
Reason for the Law
To preserve the integrity of the State Insurance
Fund thereby assuring every claimant payment of
whatever is due him.
CHAPTER IX
RECORDS, REPORTS, AND PENAL PROVISIONS
ART. 205. Record of Death or Disability
Employer’s Logbook
* Every employer is required to keep a logbook to
record chronologically the sickness, injury or death
of his employees within 5 days from notice or
knowledge.
* If the employer fails to record the sickness, injury or
death of his employees, he shall be liable for 50
percent of the lump sum equivalent of the income
benefit to which the employee may be found to be
entitled.
ART. 206. Notice of Sickness, Injury, or Death
Actual Knowledge is Equivalent to Notice
* The notice required herein is no longer necessary if
the sickness, injury, or death is known to the
employer, his agents, or representatives.
ART. 207. Penal Provisions
Aggravating Circumstances
* A heavier penalty is imposed if the offense is
committed by:
a. Any person who has been or is employed by
the ECC, SSS, or GSIS
b. A lawyer, physician or any other
professional
c. Any official, employee, or personnel of the
ECC, SSS, GSIS or any government
agency.
ART. 208. Applicability
Effectivity of the New Compensation Law
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*
Provisions of the Labor Code on Employees’
Compensation took effect on January 1, 1975
*
It merely requires employers to extend assistance in
the establishment and operation of adult education
programs for employees.
ART. 208-A. Repeal
Laws Repealed
* The Labor Code provisions on employees’
compensation repealed:
a. Act No. 1874 – Employer’s Liability Act
b. Act No. 3428 – Workmen’s Compensation
Act
TITLE III
MEDICARE
ART. 209. Medical Care
The National Health Insurance Program
* The Philippine Medical Care Plan under the Revised
Philippine Medical Care Act has been superseded
by the National Health Insurance Program created
by the National Health Insurance Act of 1995.
* Aims to provide health insurance coverage and
ensure affordable, acceptable, available and
accessible health care services for all citizens of the
Philippines
* Serves as a means for the healthy to help pay for
the care of the sick and those who can afford
medical care to subsidize those who cannot.
* Shall initially consist of programs I and II of Medicare
and expand progressively to constitute one universal
health insurance program for the entire population.
* Administered by the Philippine Health Insurance
Corporation.
TITLE IV
ADULT EDUCATION
ART. 210. Adult Education
Adult Education Program
* This article does not impose upon employers the
obligation to establish an adult education program.
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BOOK 6
POST EMPLOYMENT
TERMINATION OF EMPLOYMENT
Art. 278. Coverage – The provisions of the this Title shall apply to all establishments or
undertakings, whether for profit or not.
Art. 279. Security of Tenure
Construed – secu of tenure – refers to regular employment and as a meaning that the employer
shall not terminate the services of an EE except for a just or authorized cause.
6
Act of social justice
6
Intended to protect an employee against any arbitrary and unjust deprivation of his job
Coverage
6
Project EEs, Seasonal EEs or fixed term EEs
6
Probationary employees
6
Managerial EEs – subject to stricter norm of discipline
6
Casual EEs – have rendered at least one year of service are accorded with ST
Extent of the Right
6
ST protects an EE not only against arbitrary or unjust dismissal, but also against other
personnel actions which are calculated to force an EE to give up his employment
without valid reason.
Limitations
6
Not use to deprive an ER of its prerogatives.
Managerial Prerogatives
- inherent in the management of an enterprise
- acts by which one directing a business is able to control the variables thereof
so as to enhance the chances of making profit.
- belongs to the ER
- includes hiring, work assignment, working methods, time, place and manner
of work, tools to be used, processes to be followed, supervison of workers,
working regulations, transfer of EEs, work supervision, lay-off of workers,
discipline, dismissal and recall of work.
- NLRC or LA – not authorize to interfere with or substitute their judgment for
that the ER in the conduct of his business.
- but it is within their power to inquire on whether or not the
exercise of managerial prerogatives tainted with bad faith or grave abuse of
discretion.
A. Prerogative to Choose Whom to Hire
o
privilege of management because such right inheres in the conduct and
operation of the business by the ER.
o
has the right that to set or fix probationary period in order to test and
observe the conduct of the EE before hiring him permanently.
B. Prerogative to Promote EEs
-promotion – advancement from one position to another with an increase in duties and
responsibilities and usually accompanied by an increase in salary.
“usually” – not all promotions may be accompanied by a corresponding salary increase,
notwithstanding the increase in duties and responsibilities of the EE.
6
Promotion to supervisory, managerial or executive positions rests upon the discretion of
management
o
Such offices can ONLY be held by persons who have the trust of the
corporation and its officers.
6
ER – has the right to choose whom to promote: EE has the right to decline a promotion.
6
No law that compels an EE to accept a promotion, since promotion is in the nature of a
gift or reward which a person has the right to refuse.
C. Prerogative to Transfer EEs
Transfer – movement of an EE from one position to another position of equivalent rank,
level or salary, without break in service.
6
If the EE refuses to be transferred, the ER could be validly dismiss him on the ground of
insubordination or willful disobedience.
Limitations:
6
Cannot be used as a sanction for union activities
6
Cannot be used as a pretext to get rid of an unwanted EE
6
Cannot be used as a subterfuge for demotion
D. Prerogative to reduce Personnel for Economic Reasons
- i.e., installation of labor-saving devices, redundancy, retrenchment to prevent losses.
- based on the principle that an ER cannot be compelled to give employment to a
greater number of persons than the economic operations of his business requires.
E. Prerogative to Reduce Working Hours/Days
F. Prerogative to Change Working Hours
- whenever the exigencies of the service so require,
- so long as exercised in GF for the advancement of the ERs interest and not for the
purpose of defeating or circumventing the rights of the EEs under special laws or under valid
agreements, the exercise of such right should be upheld.
G. Prerogative to Abolish a Department or Sections
- must be done in GF
H. Prerogative to reorganize and abolish positions
- springs from the right of an EE to conduct its own business affairs to achieve its
purposes.
- reorganization often results in the abolition of positions and the creation of new ones.
- if achieved, affected EEs cannot validly insist in their old positions and ranking
because that would render the organization ineffectual.
I. Prerogative to Spin-Off a Portion of its Business
- San Miguel corp EEs Union vs Confesor
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
J. Prerogative to Close Down its Business
- GR: state should not interfere with the management’s decision to close down its
business
- right to close down the entire estab carries with it the right to close a part of thereof.
K. Prerogative to transfer Business Ownership
- Management prerogative to adopt economic policies or make some changes or
adjustments in their organization or operations that would insure profit to itself or protect the
investment of its stockholders.
- ER may merge or consolidate its business with another or sell or dispose all or substantially
all of its assets and properties even if it may bring about the dismissal or termination of its EEs in
the process.
- Labor contract :
not enforceable against a transferee/buyer of a business enterprise, labor contracts
being in personam
does not create real right over 3rd parties
 NO law which requires that the buyer/transferee of the assets of a going concern
absorb the EEs of the seller/transferor.
o
If Bad faith – the liability should be shared by the transferor and
transferee


L. Prerogative to Discipline EEs
- without discipline, success of any business enterprise would be impossible to achieve
- cannot be nullified by arguing that the ER is the accuser, prosecutor, and judge at the
same time.

Disciplinary penalties
o
Warning – disciplinary penalty usually imposed for first offenders
who commit a minor offense. It is a caution for the erring EE to
refrain from committing the same offense in the future under pain
of a more severe penalty.
o
Reprimand – more severe than warning in the sense that it is
accompanied by censure, rebuke or sharp scolding
o
Suspension – temporary separation of an EE from service. This is
usually imposed for less serious offenses or for minor offenses that
lighter sanctions failed to rectify.
o
Demotion – transfer of an EE to a lower rank or position with
corresponding reduction in salary

Should be imposed only for a just cause and after the
procedural requirements of due process shall have been
observed
o
Dismissal – highest penalty that can be imposed against an erring
EE. It severs employment ties and could well be the economic death
sentence of an EE. EE cannot be dismissed except for the most
serious causes.

Stems from the principle that an ER cannot be compelled
to continue with the employment of a person guilty of
malfeasance or misfeasance towards his ER and whose
continuance in the service is patently inimical to his
interest.
Determination of appropriate penalty
o
Depends upon the surrounding circumstances
o
Factors to be considered:

Nature of the offense

Position of the EE

Degree of damage

Past record of the EE

Length of service
•
Longer an EE in the service, the greater is his
responsibility for knowledge and compliance
with the norms of conduct and the code of
discipline of the ER.
Illegal Dismissal
o
Refers to termination of employment that is expressly prohibited by
law:

Dismissal of an EE who has filed a complaint or instituted
a proceeding under Title II of the LC or has testified or is
about to testify in such proceedings

Dismiss a female EE for the purpose of preventing her
from enjoying the benefits granted by the LC

Dismiss a female EE on account of her pregnancy, or while
on leave due to her pregnancy

Dismiss an EE upon returning to her work for fear that she
may again be pregnant

Dismiss an EE for having given or being about to give
testimony under the LC

Dsmiss an EE who has called upon by the State to fulfill a
military or civic duty during the fulfillment of such duty
Unjust dismissal
o
If the services of an EE are terminated without the just cause
specified in Art. 282 of the LC
o
Illegal dismissal INCLUDES unjust dismissal

Dismissal for minor or unimportant infractions

Dismissal for filing of a complaint for violation of the min.
wage law.

Dismissal for an offense instigated by the ER

Dismissal due to the union activities of the EEs brother

Dismissal due to union activities

Dismissal for soliciting signatures to form a union

Dismissal for refusing to join the union favored by the
employer
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o


Remedy for Illegal or unjust dismissal
o
File a complaint for illegal dismissal with the LA (reg’l branch of the
NLRC)

Petition for injunction is not a proper remedy because
injunction is not a cause of action itself but merely a
provisional remedy – an adjunct to a main suit. ( originates
from “any labor dispute”)
Reliefs for Unjust or Illegal Dismissal
o
Migrant workers

Full reimbursement f his placement fee with 12% interest
per annum

Salaries for the unexpired portion of his employment
contract, or 3 months salary for every year of the
unexpired term, whichever is less.


o
Locally employed workers

Reinstatement without loss of seniority rights and other
privileges

Backwages, inclusive of allowances, and to his other
benefits or their monetary equivalent computed from the
time his compensation was withheld from him up to the
time of his actual reinstatement

Moral and exemplary damages, if the dismissal was
tainted with malice or bad faith or

Separation pay, under certain conditions
Reinstatement

Relief separate and distinct from backwages.

Restores the lost position
•
Backwages – restores the lost income

Restoration to a state from which one has been removed
or separated. It is the return to the position from which he
was removed.

An ER cannot be ordered to reinstate an EE to a position
which he never occupied.

Reinstated EE may be required to undergo physical or
medical exam to determine his fitness to work but not use
as a precon for reinstatement
Reinstatement “Without Loss of Seniority Rights”
o
Means upon reinstatement, the EE is to be treated in matters
involving rank, position, and continuity of employment as though he
has not been absent from work.
Dismissed EE should be given a substantially equivalent position

Otherwise, the EE is entitled to separation pay equivalent
to at least 0ne month salary for every year of service plus
backwages, if warranted.
•
(if ER has closed down its business, undertook
retrenchment measures or drastic reduction of
personnel or considerable lapse of time has
lapsed since the EEs dismissal that
reinstatement is impractical)

However, if the illegally dismissed EE has retired that
relief of SP is not available, he will only be entitled to
backwages up to the time when he reached the
retirement age plus, retirement pay.

Propriety of Reinstatement
o
Available only to EEs who are unjustly dismissed or illegally
dismissed.

Not proper when the EE abandoned his employment or
refuse to work

Effect of Employment Elsewhere
o
Still entitled to be reinstated
o
Cannot be expected to remain idle particularly if he has dependents
looking to hi for his sustenance
o
Employment elsewhere is out of necessity rather than choice
o
Can apply in foreign country

Circumstances that Preclude Reinstatement
o


Alternative relief If Reinstatement is No Longer Possible/already filled up
GR:
As long as the dismissal is illegal, the automatic relief is REINSTATEMENT,
except:
1.
2.
3.
4.
Transfer of Business ownership
a. Reason: New owner (buyer) is not obliged to absorb the EEs of the old
owner (seller), unless there is an express assumption of liabilities by the
new owner
ER suffers business reverses
a. Reason: ER cannot be compelled by an order of reinstatement to give
employment to a greater number of persons than the economic
operations of the business requires: ER is still liable for backwages
When the position is abolished
Closure of Business
a. Reason: would amount to exacting from the ER compliance with the
impossible
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4
5.
6.
Incapacity of the EE
Attainment of retirement Age
a. Reason: can no longer work after reaching the retirement age of 60 YO
7. When reinstatement is barred in conviction in criminal order
a. Reason: subsequent conviction is a supervening event that rendered
unjust and inequitable the reinstatement of an EE
8. Laches
a. Reason: to allow the management to conduct its business and affairs,
considering the dismissal and the possibility of the dismissed EE
resorting to court action to vindicate his right to continue employment
9. By prescription – must be filed within 4 years from the date of dismissal
10. When the complaint merely prays for SP
a. Reason: he forecloses his right to reinstatement
11. Strained relations

Applicable to reinstatement pending appeal



When to invoked the doctrine of Strained relations
o
GR: must be raised and proved before the LA, except:

Strained relations arose after the filing of the complaint

During the execution proceedings as a supervening event which
would render the execution unjust and inequiatable
o
Should not be applied indiscriminately
Remedy for Refusal to comply with a reinstatement
o
not a separate action for illegal dismissal but a motion for issuance of writ of
execution
o
if the ER still refused to comply with the reinstatement order despite the
issuance of a writ of execution, the remedy is not the grant of additional
backwages, but contempt proceedings
o
Christian Lit vs NLRC – involves refusal to comply with a reinstatement order
that has become final and executor, whereas in Medina case, involves refusal
to comply with a reinstatement order pending appeal
Back wages
o
Not the principal cause of action in an illegal dismissal case
o
Merely one of the reliefs extended to an EE who is unjustly dismissed.
o
Form of relief that restores the income that was lost by reason of unlawful
dismissal

Rationale: EE whose dismissal is found to be illegal is considered as
not having left his office so that he is entitled to all the rights and
privileges that accrue to him by virtue of the office that he held.

Backwages vs Unpaid Wages
•
Backwages – compensation which an EE would have
earned had he not been unjustly dismissed
•
Unpaid Wages – compensation for services already
rendered but withheld by the ER
o
o
Amount of backwages that may be awarded

Art. 279 LC – EE is entitled to FULL BACKWAGES from the time
his compensation was withheld up to the time of his actual
reinstatement.
•
BUT the LA and the NLRC – have the discretion to
determine how much backwages should be awarded
taking into account the facts and circumstances of each
case
•
Dismissal is unjust or illegal because the EE was
dismissed:
o
On grounds specifically prohibited by law; (Art.
118, 137, 248 (F), 290)
o
Without ANY cause whatsoever, i.e., the EE has
not committed an offense, or
o
Without JUST cause, the EE has committed an
offense but the penalty of dismissal is not
commensurate.
Full Backwages

If the EE was dismissed on grounds specifically prohibited by law;
(Art. 118, 137, 248 (F), 290) ---(should not be dismissed in the 1st
place)

If dismissed Without ANY cause whatsoever, i.e., the EE has not
committed an offense, ( EE does not deserve any penalty
considering that he has not committed any offense
o
Limited Backwages

If the EE was dismissed Without JUST cause,i.e., the EE has
committed an offense but the penalty of dismissal was found to be
too harsh or excessive, full backwages should not be awarded
because that would be in effect absolve the EE from his
wrongdoing.

if there is delay in filing the complaint for illegal dismissal. The
period of delay in instituting the action for reinstatement may be
deducted from the liability for backwages
o
NO backwages

GF on the part of the ER in dismissing the EE

Cessation of employment brought about neither by dismissal nor
abandonment

Cessation of employment due to the EEs refusal to work
•
EX: EE stops working on the erroneous belief that she
was harassed and persecuted
o
Methods in Determining the Amount due to the EE

The “Deduction of Earning Elsewhere” Doctrine
•
earning obtained by the EE elsewhere shoud be deducted
from the backwages awarded to the E pursuant to the
principle that EEs should not be dismisses to enrich
Palmiery/laborreview/atty.ungos4book/notes66666Page444of4114
4


themselves at the expense of their ER and also because of
the law’s abhorrence for double compensation
Mercury Drug Doctrine (Mercury Drug vs CIR)
•
Discarded the 1st method
•
Backwages due to an illegally dismissed EE is fixed at a
certain amount (usually 3-yrs where the case is not
terminated sooner) without deduction or
qualification
•
Realistic, reasonable and mutually beneficial to both
parties because it relieves the EE from submitting docs to
prove his earnings.
Bustamante doctrine (Bustamante vs NLRC)
•
Currently followed
•
Backwages to be awarded to an illegally dismissed EE,
should not, as a general rule, be diminished or reduced by
the earnings, derived by him elsewhere during the period
of his illegal dismissal
•
Reason: the EE, while litigating the matter of his dismissal,
must still earn a living to support himself and family, while
full backwages have to be paid by the ER as part of the
price or penalty he has to pay for illegally dismissing his
EE
o
Computation of backwages for irregular workers

Determine frst what these workers would have reasonably earned
had they not been dismissed, using as basis for that purpose the
wages actually earned by other irregular workers doing the same
kind of work who have not been dismissed.
o
Circumstances that forestall the running of backwages

Death – (EE can earn wages only when alive)

Physical or mental incapacity

Attainment of retirement age

Permanent closure of establishment

Temporary closure of establishment

Confinement in prison

Re-employment of the dismissed EE
o
Other benefits

Transporation and emergency allowances

Vacation leave or service incentive leave, and

13th month pay

Phrase “other benefits” does NOT include:
•
Facilities used only during official tour of duty and not for
personal and private purpose
•
Benefits that are enjoyable only if approved by the ER,
such as free trip passes.

Separation Pay (SP)
o
Distinct from backwages, hence, can be awarded simultaneously
o
SP is intended to provide the EE money during the period in which he will be
looking for another employment
o
Sort of an aid to an EE upon his separation from service so that he may
something on which to fall back when he losses his means of livelihood
o
Amount designed to provide him with the wherewithal during the period that
he is looking for employment
o
PURPOSE: to alleviate the difficulties that confront a dismissed EE thrown into
the streets to face the necessities of life
o
When proper:

Redundancy

Installation of labor-saving devices

Retrenchment

Closure of establishment not due to serious business losses.

Disease, or

Lay-off/suspension of operations for more than six months

NOTE: EE found to have been unjustly dismissed, under the ff
circumstances:
•
If reinstatement of the EE has been rendered impossible
by supervening events, such as closure of estab, sale
or transfer of business ownership, abolition of position,
reduction of personnel or physical incapacity of the EE
•
If the reinstatement of the EE is no longer feasible, as
when the relationship between the ER and the EE has
been severely strained, or when there is no substantially
equivalent position available.

NOTE: if the EE was dismissed for just and valid cause….?
•
GR: SP from work of an EE for a just cause DOES NOT
entitle him to SP
•
EXCEPT: when the EE was validly dismissed for a cause,
other that serious misconduct or offenses
reflecting on his moral character as a measure of
social justice

NOTE: if the EE resigned from his employment, NOT entitled to
SP, except when it is stipulated in the employment contract, CBA or
established ER practice or policy.

NOTE:if the EE retires from employment, NOT ENTITLED to SP
but RETIREMENT PAY

Damages
o
Moral and exemplary damages prescribed by the Civil Code
o
EE must proved that his dismissal was: (moral damages)

Tainted by bad faith or fraud

Contrary to morals, good customs or public policy
Palmiery/laborreview/atty.ungos4book/notes66666Page454of4114
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o



Social humiliation, wounded feelings, grave anxiety,
Exemplary damages

EEs dismissal was effected in a wanton, oppressive or malevolent
manner
Reliefs when there is neither dismissal nor abandonment
o
Reinstatement
o
Not entitled to backwages/SP: each party must bear his own loss
Liability of Corporate Officers
o
GR: corporate officers cannot be held personally liable or solidarily liable with
the corpo for backwages, damages or other money claims of EEs, even if they
were impleaded in the complaint.
o
EXCEPT:

If the corpo officer acted in bad faith;

If the corporation is no longer existing and unable to satisfy the
judgment in favor of the EE, in which case, the officers should be
held liable for acting on behalf of the corporation.
o
Solidarity liability – imposed upon the highest and most ranking officer of the
corporation

Must be shown that the officers of the corp deliberately or
maliciously designed to evade the financial obli of the corp to its
EEs or a showing that the officers indiscriminately stopped its
business to perpetrate an illegal act, as a vehicle for the evason of
existing obli, in circumvention of statutes and to confuse legitimate
issues.
Art. 280. Regular and Casual Employment
6
not a test of ER-EE relationship
classification of employment
o
regular employment
o
non-regular employment
o
casual
regular or permanent Employment
o
where the EE has been engaged to perfrom activities that are usually
necessary and desirable in the usual business or trade of the ER
o
determined not by the employment contract nor by the nomenclature of the
job but by the NATURE of the job.
o
TEST: reasonable connection between the particular activity performed by the
EE in relation to the usual business or trade of the ER
o
In some cases: repeated re-hiring and the continuing need for the EEs service
may indicate that the activity is usually necessary or desirable in the usual
trade or business or trade of the ER
Non-regular of Temporary Employment
o
Project Employment
o
o
Seasonal employment
Fixed-term employment

(the activities performed by the above are usually necessarily or
desirable in the usual business or trade of the ER but the law does
not consider them a regular EE because the engagement of the EE
is only for a limited period.
Project employment
o
Job confined to a specific project or undertaking, the completion or
termination of which has been determined at the time of the engagement of
the EE, regardless of the number of years that It would take time to finish
undertaking
o
“specific project or undertaking” contemplates:

An activity which is not commonly or habitually performed; or

A type of work which is done on a daily basis but only for a specific
duration of time until completion.
o
May refer to two distinguishable types of activities, to wit:

Project could refer to a particular job or undertaking that is within
the regular or usual business of the ER, but which is distinct and
separate and identifiable as such, from the other undertakings of
the company. This begins and ends at determined or determinable
times.
•
Ex: job on a construction company

Particular job or undertaking that is not within the regular business
of the ER. Such job must also be identifiably separate and distinct
from the ordinary or regular business operations of the ER
•
Ex: 5-yr expansion program for NST (consist of several
component projects)
o
Each of the component project constitututes a
distinct undertaking identifiable from the
ordinary business and activity of NST
o
Length of service is not the controlling test of project Employment.
o
TEST: w/n the engagement of the EE has been fixed for a specific project or
undertaking, the completion or termination of which has been determined at
the time of the engagement of the EE
o
The duration of employment is coterminous with the work to which the EE
was assigned.
o
EEs affected cannot compel the ER to keep them in the payroll because it is
unjust to require the ER to maintain them in the payroll while they are doing
absolutely nothing except waiting until another project is begun.
o
Otherwise, these Stand-by Workers would be enjoying the status of privileged
retainers collecting payment for work not done, to be disbursed by the ER
from profits not earned.
Seasonal Employment
o
Job that is limited to the duration of a particular season
o
Co-terminus with the duration of the season
Palmiery/laborreview/atty.ungos4book/notes66666Page464of4114
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However, if the same EEs are repeatedly engaged every season, they become
regular seasonal EEs, in which case, they cannot be terminated without just
cause
o
OFF-season: regular seasonal EEs is nt severed but merely suspended
Fixed- Term Employment
o
EEs with specific date of termination
o
Determining factor is not the activity that the EE is called upon to perfrm but
the day certain agreed upon by the parties
o
DAY CERTAIN – that which necessarily must come, although it may not be
known when
o
Employment contracts for a fixed period cannot be said to be in
circumvention of security of tenure:

If the fixed period of employment was knowingly and voluntarily
agreed upon by the parties without any force, duress or improper
pressure being bought to bear upon the EE and without any other
circumstances vitiating consent, or

If it is satisfactorily appears that the ER and EE dealth with each
other on more or less equal terms with no moral dominance
whatever being exercised by the former on the latter.
o
Casual employment
o
Job wherein the activities performed by the EE are not usually necessary or
desirable in the usual business or trade of the ER
o
Casual occasional, coming with regularity. Also, when it is not part of the
business in which the ER is engaged.
o
Casual EE who has rendered at least one (1) year of service, whether such
service is continous or broken, is considered a regular EE with respect to the
activity in which he is employed.
o
Regular status attached to the casual EE on the day immediately after the end
of the first year of service
o
Art. 280 applies to EEs hired directly by an ER: Art. 106- those hired by the
contractor
Art. 281. Probationary Employment
Situation where the EE upon his engagement is made to undergo a trial period
during which the ER determines his fitness to qualify for regular employment,
based on reasonable standards made known to him at the time of engagement.
The contract should specifically state that the management of the EE is on
probationary basis, otherwise, the employment cannot be considered as
probationary.
Purpose: to allow the ER to test the wrking habits and other personal traits of the
EE with respect to his fitness for regularization in the company.
Duration:
o
GR: limited to 6 months
o
Exceptions:

When the parties to an employment contract or CBA agree on
a longer period;
When a longer probationary period is established by company
policy; or

When a longer period is required by the nature of the work
o
NOTE: where the work for which the EE has been engaged is learnable
or apprenticeable in accordance with the standards prescribed by the
DOLE, the period of probi employment shall be limited to the authorized
learnership or apprenticehip period. Thus,upon graduation or upon
completion of the learning period, an apprentice or learner may not be
put under probationary employment in the same company in which they
are trained. In another company, they may be plac on probi status of
6months.
Duration of Probi employment for teachers
o
Elem and secondary level – 3 consecutive school years of satisfactory
service
o
Tertiary and graduate level – 6 consecutive semesters of satisfactory
service
o
Tertiary level on trimester basis – 9 consecutive trimesters of satisfactory
service

Extension of probi employment
o
Granted to give the EE the chance to improve
o
Should before the expiration of the prescribed period otherwise, the EE
will automatically become a regular EE by operation of law.
Termination of probi employment
o
any of the causes enumerated in Art. 282, 283, and 284 of the LC, or
o
failure to qualify as a regular EE in accordance with reasonable standards
made known by the ER at the time of his engagement
o
may be terminated even before the expiration of 6 months after hiring
Limitations on the Right to Terminate a Probi Employment
o
Must be exercised in accordance with the specific requirements of the
contract
o
The dissatisfaction of the ER must be real and in GF, not feigned so as to
circumvent the contract or the law, and
o
There must be no unlawful discrimination in the dismissal
Art. 282. Termination by the ER
 Serious Misconduct or willfull disobedience by the EE of the lawful orders of his
ER or rep in connection with the work
 Gross and habitual neglect by the EE of his duties
 Fraud or willfull breach by the EE of the trust reposed in him by his ER or duly
authorized representative
 Commission of a crime or offense by the EE against the person of his ER or any
immediate member of his family or his duly authorized rep and
 Other causes analogous to the foregoing.

Serious misconduct
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Misconduct – improper or wrong conduct
Transgression of some estab and definite rule of acion,
forbidden act, a dereliction of duty, willful in character and
implies a wrongful intent and not a mere error of judgment

Must be serious; and
•
Use of insulting and offensive language will
constitute serious misconduct if uttered
when the person subjected to it is present,
otherwise, not.
•
When an EE made false and malicious
statements against their superiors

Related to or in connection with the EEs work
•
Harassment of an EE by a co-EE within the
company premises
Willfull Disobedience
o
Requisites

The disobedience must be willfull or intentional

Order must be reasonable and lawful

Order must be known to the EE; and

Order must pertain to or must be in connection with
the duties which the EE had been engaged to
discharge
o
o






o
o

Willfull breach of trust
o
– if done intentionally, knowingly and purposely without
justifiable excuse, as distinguished from an act done
carelessly, thoughtlessly, heedlessly or inadvertently

Valid ground:
•
Willful, and
•
Related to the performance of the EEs
functions

Basic Premise: the EE concerned holds a position of
trust and confidence and it is breach of this trust that
results in the ER’s loss of confidence in the EE
o
Guidelines for the Application of the doctrine of Loss of
confidence:

Loss of confidence should not be simulated

Should not be used as a subterfure for causes which
are improper, illegal or unjustified

May not be arbitratrily asserted in the face of
overwhelming evidence to the contrary and

Must be genuine, not a mere afterthought to justify
the earlier action taken in bad faith
o
Positions of T/C

Bank teller

Cashier

Salesman

Miner

Teachers

GM

VP for Marketing

Dist. Sales Sup

Credit and Collection Sup

Warehouseman

Commission of the crime
o
Ground for dismissal if commited by an EE against the person
of the:

ER

Immediate member of his family

Authorized representative of the ER
The disobedience must be willfull or intentional
o
Characterized by a wrongful and perverse mental attitude
rendering the EEs act inconsistent with proper subordination
Order must be reasonable and lawful
Pertains tp the kind or character of directives and commands and to the
manner in which they are made
Lawful – if not contrary to law, morals, good customs, public policy or
public order
Example:
o
Refusal to obey a transfer order
Gross and habitual neglect of Duty
o
Gross: glaringly noticeable usually because of inexcusable
badness or objectionableness.
o
Habitual: connotes more than just a single or isolated act.
o
Reason: reciprocal obligations entailed in an ER-EE
relationship
o
Neglect: not the same as negligence

Neglect= indicates as a purely objective fact that a
person has not done that which it was his duty to do
– it does not indicate the reason for his failure

Negligence = subjective state of mind

Damage: not essential: enough to prejudice the ER
Fraud – is the knowing misrepresentation of the truth or
concealment of a material fact to induce another to act to his
or her detriment.
To constitute a just cause for dismissal, fraud must be:

Committed against the ER; and

In connection with the EEs work

NOTE: if 3rd person – not fraud: no connection with
his work
Fraud
Palmiery/laborreview/atty.ungos4book/notes66666Page484of4114
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o


Prior conviction is not required – mere commission of the
crime is enough
Analogous causes
o
Must have an element similar to those found in the specific
just cause enumerated under Art. 282 of the LC
o
Voluntary or willful act of the EE
o
Not included

Illness

Conviction of a crime involving moral turpitude
o
Examples:

Gross inefficiency
•
Closely related to “gross neglect”

Inflicting or attempting to inflict bodily injury on the
job site on company time

Unreasonable behavior, quarrelsome, bossy and very
difficult to deal with
Other Valid Causes for Dismissal
1. Violation of company rules and regulations
2. Breach of union secu arrangements;
a. Limitations:
i. EEs who are already members of another
union at the time of the signing of the CBA
cannot be dismissed for refusing to join the
contracting union
ii. EEs who refuse to join the contracting union
because of prohibition imposed by their
religion cannot likewise be dismissed;
iii. If its was the contracting union itself who
refused to accept the EE as its member, the
union cannot validly ask for the dismissal of
the EE
iv. If the EE resigns from the contracting union
during the freedom period, the union cannot
validly ask for the dismissal of an EE
3.
4.
5.
6.
Participation in an illegal strike
a. Any union officer who knowingly participates in
an illegal strike may be declared to have lost
their employment status
Commission of illegal acts during a strike
a. Union officer or worker
Defiance of return-to-work order in a strike; and
Sexual harassment
a. Committed by an ER, EE, Manager, Supervisor
or agent of the ER who, having authority,
influence or moral ascendancy over another,
demands, requests or otherwise any sexual
favor from another, regardless whether the
demand, request or requirement is accepted.
Art. 283. Closure of Establishment and regulation of Personnel
Economic justifications for terminating employment
o
Installation of labor-saving devices
o
Redundancy
o
Retrenchment to prevent the losses
o
Closing or cessation of operation of the establishment
Not attributable to the fault of the EE but due to the prerogative of every business
concern to institute appropriate measures to ensure increased productivity,
economic viability and competetiveness
Due to economic reasons



1.
Installation of labor-saving devices
 ERs right to effect more economy and efficiency in its method of production
 Purpose: to mechanize or modernize its business even if in the process, It results in
the dismissal of a number of EEs
2.
Redundancy
 Exist when the services of an EE are in excess of what is reasonably demanded by
the actual requirements of the enterprise
 Exercise of business judgment
 Does not necessarily refer to the duplication of work
 Principle: an ER cannot be compelled to give employment to a greater number of
persons than the economic operations of his business requires.
 Requisites:
o
GF in abolishing the redundant positions
o
Fair and reasonable criteria in ascertaining what positions are to be
declared redundant and accordingly abolished.
o
Written notice served on both the EEs and the DOLE at least 1 month
prior to the intended date of termination; and
o
Payment of SP
3.
Retrenchment
 Is the reduction of personnel due to actual or anticipated losses, lack of work or
reduction in the volume of business
 Can be adopted even before the actual losses is sustained
 Four standards
o
Expected losses should be substantial and not merely deminimis in
extent
o
Substantial loss apprehended must be reasonably imminent, as such
immenence can be perceived objectively and in good faith by the ER
o
Must be reasonably necessary and likely to effectively prevent the
expected losses. It must be resorted to as a measure of last resort
Palmiery/laborreview/atty.ungos4book/notes66666Page494of4114
4
o

4.
Alleged losses realizes and the expected imminent losses sought to be
forestalled, must be proved by sufficient and convincing evidence
Requisites for valid retrenchment
o
It is reasonably necessary and likely to prevent business losses which, if
already incurred, and not merely de minimis but substantial, serious,
actual and real or if onlu expected, are reasonably imminent as perceived
objectively and in GF by the ER.
o
That the ER exercises its prerogative to retrench EEs in GF for the
advancement of its interest and not to defeat or circumvent the EEs right
to security of tenure;
o
That the ER used fair and reasonable criteria in ascertaining who would
be dismissed and who would be retained among the EEs
o
That the ER served written notice both to the EE and the DOLE at least 1
month prior to the intended date of retrenchment
o
That the ER pays the retrenched EEs separation pay.
Closure of establishment
 Permanent closure
 Prerogative of management
 Requisites:
o
Closure of a business must be bona fide in character
o
A written notice must be served upon the EEs and the DOLE at least one
moneth before the intended date of closure
o
The ER must be give separation pay to the EEs, if the closure was not
due to serious business losses.
 Relocation of plant may amount to closure
 Procedural requirements
o
2 notices months: 1-affected EE; 1- DOLE
o
One month in advance
o
Purpose: to obviate abrupt and arbitrary dismissal and to enable the EE
to survive while he is looking for another job.
Amount of SP
EEs terminated are entitled to SP of at least one month pay or the ff amount, whichever is higher:
(A) ONE MONTH pay for every year of service, in case of:
a) Installation of labor saving device
b) Redundancy
(B) ½ month for every year of service, in case of:
a) Retrenchment to prevent losses;
b) Closure of the establishment not due to serious business losses.
NO SP in case of closure of business die to serious business losses.
“for every year of service” = means actual service
SP – based on the salary rate before its deduction
Art. 284. Disease as a ground for Termination
↓
↓
↓
↓
Conditions for terminating an employment due to illness
o
That the continued employment of the sick EE is prohibited by law or is
prejudicial to his health or to the health of his co-EEs and
o
That there is a certification from a competent public authority that the
diseaseis of such nature or at such a stage that is cannot be cured withn
the period of 6 months even with proper medical treatement
Medical cert required
If can be cured within 6-months, the EE shouls be allowed to take a leave
Otherwise, the EE is entitled to a SP equivalent to at least 1month salary or ½
month for every year of service. Whichever is greater.
Art. 285. Termination by EE
Termination of Employment by an EE
1. Voluntary resignation
2. Constructive resignation (abandonment of employment)
3. involuntary resignation (constructive dismissal
1. Voluntary resignation
 Formal renouncement or relinquishment of an office. It is the
voluntary act severing an employment relation at the initiative of the
EE who finds himself in a situation where he believes that personal
reasons cannot be sacrificed in favor of the exigency of service that
he has no other choice but to disassociate himself from his
employment
 Must be unconstitutional and with the intent to operate as such
 Intent to relinquish the job can be inferred from the wordings of the
letter or memorandum/actuations of the EE
 Threat to prosecute for estafa is not an unjust act but rather a valid
and legal act to enforce a claim, hence, it cannot at all be
considered as intimidation
 Not negated by the fact that the ER persuades an EE to resign
instead of being dismissed for cause
1-month NOTICE
 EE should give his ER a written notice of resignation at least 1 month in advance.
Otherwise, the ER can hold him liable for damages
 The ER cannot compel the EE to render service during the period because that
would amount to involuntary servitude
 Purpose: to enable the ER to look for replacement and therefore, prevent a
disruption of work. If 1-month lapses, the EE can leave his employment even if the
ER has not found a replacement and even if the operation of the company would
be affected.
 May be waived by the ER
Effect of Acceptance of Resignation
 Once accepted, may not be withdrawn without the consent of the ER
 If the EE changes his mind—he must ask for the withdrawal of his resignation from
the ER, as if he were re-applying for his job
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



If the ER accepts said withdrawal – the EE retains his job
If the ER does not – the EE cannot claim illegal dismissal for the ER has the right to
determine who his EEs will be.
Employment contract is consensual and voluntary
NOT entitled to SP, except when it is stipulated in the employment contract, CBA
or if sanctioned by established ER practice or policy
2. constructive resignation (abandonment of employment)
Deliberate, unjustified refusal of an EE to resume his work
Voluntary act of the EE akin to voluntary resignation, but here, the EE quits his
employment without notice
Elements
o
Absence without notice, permission or justifiable reason
o
Intent to sever the employment relationship
Intent to abandon can be inferred from the ff:
o
Failure of the EE to comply with notices or directives for him to report
for work
o
Failure to report for work within reasonable time after expiration of leave
of absence without pay
o
Failure to report for work despite disapproval of application for
indefinite leave of absence
o
Prolonged absences without justifiable reason
Negated by the immediate filing of a complaint for illegal dismissal. Except when
the EE does not pray for reinstatement but only for SP
Abandonment vs absence without Leave (AWOL)
o
Abandonment – no intention to return to work
o
Absence without leave – there is an intention to return to work
Issue w/n an EE abandoned his employment is q question of fact
o
Burden of proof is on the ER
3. involuntary resignation (constructive dismissal)
Situation where an EE is contrained to quit his job because continued employment
is rendered impossible, unreasonable or unlikely;
There is demotion in rank, diminution in pay or when there is a clear discrimination,
insensibility or disdain by an ER becomes unbearable to the EE
Art. 285 LC – forms of constructive dismissal because the resignation was
involuntary
o
Serious insult upon the honor and person of the EE

Exemplified by an EE who quits his employment after being
demoted without just cause
o
Inhuman and unbearable treatment

Exemplified by an EE who quits his employment because of a
legitimate desire for self-preservation
o
Commission of a crime

Exemplified by ER who commits the crime of rape, PI,
mutilation, abortion, infanticide, homicide, murder, parricide,
discharge of firearms or challenging to duel, against the EE or
the immediate member of his family
o
o
One – month notice NOT required if the EE decides to quit his job for
any causes in Art. 285
Relief: SP plus indemnity in the form of nominal damages or backwages,
the amount of which will depend upon the discretion of the LA or the
NLRC

Reinstatement not proper relief because of the strained
relations between the parties
Art. 286. When employment not deemed Terminated
1. bonafide suspension of the operation of a business or undertaking for a period NOT
exceeding 6 months
 Management prerogative as no business can be required to continue operating at
a loss simply to maintin the workers in employment
 Must be done in GF and due to causes beyond control
 ER-EE relationship – merely suspended.
 Once the operations resumed, the EE-ER relationship is restored and the ER is
bound to reinstate the EE to his former position without loss of seniority rights If
he indicates his desire to resume his work not later than 1-month from the
resumption of operations.
 If exceeds 6-months – constructive dismissal: EE entitled to SP, unless the failure to
resume operations was impelled by serious business losses, in which case, the EEs
are not entitled to SP
o
Temporary lay-off detail/floating status

Waiting to be posted

Should not exceed 6months
2. The fulfillment by an EE of a military or civic duty
 Suspends the employment even if it exceeds 6months
 Reason: State orders a citizen to render military or civic duty, there is no choice
except to comply
 EE must signify his desire to resume his work not later than one-month from his
relief from the military or civic duty
Retirement from the service
Retirement -
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